Akrawi v. Booker ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0243p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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RAGHEED AKRAWI,
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Petitioner-Appellant,
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No. 07-1984
v.
,
>
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Respondent-Appellee. -
RAYMOND BOOKER,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 05-74518—Robert H. Cleland, District Judge.
Argued: June 17, 2009
Decided and Filed: July 10, 2009
*
Before: GILMAN and McKEAGUE, Circuit Judges; GRAHAM, District Judge.
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COUNSEL
ARGUED: Andrea Lynn Reino, GERHARDSTEIN & BRANCH, Cincinnati, Ohio, for
Appellant. Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Richard L. Steinberg, RICHARD L.
STEINBERG, P.C., Detroit, Michigan, for Appellant. William C. Campbell, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
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OPINION
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McKEAGUE, Circuit Judge. This is an appeal from an order denying a petition
for writ of habeas corpus. Petitioner contends that his 1991 drug-trafficking conviction
is constitutionally infirm because the prosecution suppressed evidence favorable to him,
*
The Honorable James L. Graham, United States District Judge for the Southern District of Ohio,
sitting by designation.
1
No. 07-1984 Akrawi v. Booker Page 2
in violation of its duties under Brady v. Maryland, 373 U.S. 83 (1963). For the reasons
that follow, we affirm.
I. BACKGROUND
A. Trial Proceedings
In October 1991, Ragheed Akrawi was tried in Oakland County (Michigan)
Circuit Court with one of eight other co-defendants, charged with conspiring to possess
with intent to deliver in excess of 650 grams of cocaine. After the jury found Akrawi
guilty as charged, he was sentenced to life imprisonment.1 The prosecution’s case was
based in part on the testimony of Wissam Abood.2 Abood had been arrested and
detained in neighboring Macomb County in February 1990 in connection with a similar
cocaine trafficking conspiracy charge. In May, Abood’s bond was reduced so he could
be released from jail to cooperate with ongoing law enforcement efforts, including the
investigation and prosecution of Ragheed Akrawi. The bond reduction was instigated
by Abood’s attorney, Sheldon Halpern, who advised authorities that Abood might be
able to help them out. Pursuant to an arrangement between the Macomb County
Prosecuting Attorney and DEA Special Agent Sergeant Chuck Pappas of the Troy Police
Department, who was supervising the Akrawi investigation, Pappas was to advise the
prosecutor of the extent of Abood’s cooperation while released on bond.
Abood subsequently testified in Akrawi’s trial that on two occasions, on
successive days in the Summer of 1988, at the same coffee shop, he purchased a quarter-
kilo of cocaine from Akrawi for a friend. The purchase price for each transaction was
$5,200. A week later, Abood made two more purchases of cocaine from Akrawi for the
same friend: a one-ounce purchase for $500 and a two-ounce purchase for $1200.
1
The sentence was subsequently reduced due to a change in Michigan law and Akrawi was
released on parole from the Michigan Department of Corrections on December 2, 2008. Akrawi’s release
from imprisonment does not affect his entitlement to seek habeas relief because (1) his incarceration at the
time he filed his habeas petition satisfies the “in custody” requirement; and (2) a parolee is still “in
custody” for habeas purposes. Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004).
2
Abood spelled his name in this manner when he testified in trial. In a later-filed affidavit, his
names appears as “Wissam Abbod.” The district court noticed the discrepancy and, consistent with the
parties’ briefing, elected to use “Abood,” a practice continued in this opinion.
No. 07-1984 Akrawi v. Booker Page 3
Abood testified that no one promised him anything for his testimony and no one had
threatened him. On cross-examination, Akrawi’s attorney, James Howarth, tested
Abood’s motivation for testifying. Abood admitted being concerned about the very
serious charges pending against him in Macomb County and about the possibility that
he, an Iraqi national, could be deported. As to whether any deal might be worked out
such that his cooperation could result in favorable treatment in Macomb County, Abood
said he did not know what the outcome would be; that he was relying on his attorney,
in whom he had confidence. Abood acknowledged having testified before the grand jury
that his motive for testifying against Akrawi was “to help rid the streets of drugs,” a
reason apparently stemming from regrets about the prevalence of drugs in his community
and the impact drugs had had on his family.3
Abood’s testimony was corroborated by Special Agent Pappas, who testified that
Abood was not promised anything. Pappas acknowledged having agreed, in Abood’s
counsel’s presence, that he would report the extent of Abood’s cooperation to Macomb
County Prosecuting Attorney Carl Marlinga. He explained that this was a promise made
to Marlinga, in connection with the bond-reduction, not to Abood or his attorney,
Sheldon Halpern. Consistent with this promise, Pappas reported Abood’s cooperation
to Macomb County Assistant Prosecutor Michael Suhy, but denied having requested any
charge-reduction or sentence-reduction. Any such decision, he explained, would have
to be made by the prosecutor. From his conversations with Suhy, however, Pappas
testified that he understood the Macomb County authorities were considering a charge-
reduction for Abood.
Macomb County Assistant Prosecutor Trish Fresard also corroborated Abood’s
testimony. She was assigned to Abood’s case when the bond-reduction was arranged.
She acknowledged that Abood was then charged with a cocaine-trafficking offense that
carried a mandatory penalty of life imprisonment without parole. She acknowledged that
a charge-reduction was a possibility that Marlinga would consider, depending on the
3
The impact on Abood’s family remained undefined in the record because the trial court
sustained Howarth’s objection to the prosecutor’s question in this regard.
No. 07-1984 Akrawi v. Booker Page 4
extent of the assistance afforded by Abood. Fresard denied ever making a promise that
Abood would be granted a charge-reduction if he cooperated.
Assistant Prosecutor Suhy later assumed responsibility for the Abood case from
Fresard. He acknowledged that, depending on the extent of Abood’s cooperation with
Oakland County authorities, a reduction of the charge against Abood was a possibility
under consideration. However, consideration of any charge-reduction was premature
from the perspective of the prosecuting attorney’s office, because at the time Abood
testified in the Akrawi trial, Halpern was still avidly pursuing outright dismissal of the
charges against his client based on an entrapment defense.
Based on the foregoing summary of relevant trial testimony, the jury was
presented with consistent evidence that there was no express agreement between Abood
and the prosecution team regarding specific consideration for his cooperation. The jury
certainly learned, however, that there was an implicit understanding that, depending on
the nature and extent of Abood’s assistance in connection with the Akrawi prosecution,
the charge pending against him in Macomb County could be reduced.
Indeed, Akrawi’s attorney emphasized this very point in his closing argument.
He acknowledged that the jury could reasonably conclude that Abood did not have a
firm deal, but he suggested they could also find it “crystal clear,” based on the testimony
of the prosecution team itself, that Abood was doing everything possible to win favor
in Macomb County and avoid such consequences as deportation or life imprisonment.
Howarth challenged the jury to see that Abood’s professed motive, to rid the streets of
drugs, was “a major league lie.” Rather, he argued, everybody knew that his real motive
was to win favor in Macomb County.
Nonetheless, Akrawi was found guilty as charged. His conviction was affirmed
by the Michigan Court of Appeals on October 24, 1995. The Michigan Supreme Court
denied leave to appeal on November 22, 1996.
No. 07-1984 Akrawi v. Booker Page 5
B. Post-Conviction Proceedings
In the meantime, Abood’s situation had improved dramatically. On February 19,
1992, Halpern wrote to the Oakland County prosecutor who had handled Akrawi’s trial,
Lawrence Bunting, explaining that Suhy had now consented to reduce the charges
against Abood, and soliciting a letter detailing the extent of Abood’s assistance. Bunting
responded with a letter explaining that Abood’s testimony was “crucial” and that the
prosecution would have been much different without it. On March 17, 1992, Abood
entered into a plea agreement, pleading guilty to delivering less than 50 grams of
cocaine. He was sentenced to lifetime probation on the recommendation of prosecutors
Marlinga and Suhy.
On August 12, 1996, Abood executed an affidavit purporting to recant or correct
his testimony in the Akrawi case. In it, he states that he falsely testified that he had no
deal. However, he identifies “the deal” only in amorphous terms: “Chuck Pappas told
me that he wanted my cooperation and if he got it, he could in turn help me with my
situation.”
Abood’s attorney, Sheldon Halpern, also provided an affidavit, dated March 19,
1998, detailing his impressions of “the deal.” He described it as an agreement with law
enforcement for a substantial reduction of the charges pending against Abood. Halpern’s
affidavit also alludes to a letter he sent to prosecutor Fresard on May 14, 1990,
purporting to memorialize the understanding. In relevant part, the letter provides:
I am writing to confirm the understanding under which your
office has consented to the entry of an Order changing the Bonds herein
to ten percent (10%) Bonds. In addition, I confirm herewith [sic] your
office to reduce the over 650 grams case to over 225 grams, with further
reductions of one (1) or more levels depending on the extent of assistance
my client affords.
I believe this letter to be necessary as none of the discussions,
including the consent to the change in Bonds, was placed on the record
for the obvious reasons.
If your understanding differs in any manner than as stated herein,
please contact me by return mail.
No. 07-1984 Akrawi v. Booker Page 6
Halpern letter 5/14/90, JA 1525 (footnote omitted).4
Armed with these materials, Akrawi moved for relief from judgment in the
Oakland County Circuit Court in September 1998. Akrawi contended that he was denied
a fair trial due to the prosecution’s failure to disclose information regarding its
cooperation agreement with Abood and due to the prosecution’s presentation of false
testimony regarding the agreement. An evidentiary hearing was conducted on July 18
and 23, 2001. Abood refused to testify, asserting his Fifth Amendment privilege against
self-incrimination because he was not granted immunity. The court, Hon. Nanci J.
Grant, received testimony from Halpern, Pappas, Fresard, Bunting, Suhy and Howarth
before issuing an opinion and order on May 30, 2002, concluding that Akrawi was
entitled to a new trial.
Halpern testified that Pappas had made assurances to him consistent with the
terms memorialized in his letter to Fresard. Halpern understood this to comprise a “firm
agreement,” inasmuch as Fresard did not communicate any objection in response to the
letter. Halpern further testified that some years after the Akrawi trial, Abood told him
that prosecutor Bunting had advised Abood, before he testified in the Akrawi trial, that
he had not been given any consideration for his testimony and he was expected to so
testify.
Pappas remained true to his trial testimony, maintaining that he made no
promises to Abood, although he agreed with the Macomb County authorities to report
Abood’s cooperation to them. Pappas testified that he lacked authority to make any
promise of a charge-reduction. Fresard, too, testified that she had made no promise to
Abood and lacked the authority to do so. Fresard denied ever having seen the May 14
letter from Halpern, although she did not dispute that it was found in her file. Fresard
acknowledged that the possibility of a charge-reduction was the benefit that Abood
hoped or expected to gain by his cooperation.
4
The operative term in the second sentence quoted is missing in the original. Yet, whether the
missing term is “the agreement of” or “the willingness of” or “the intention of,” the meaning seems plain.
Halpern appears to have understood that his client stood to gain a charge-reduction in some degree,
depending on the extent of his assistance.
No. 07-1984 Akrawi v. Booker Page 7
After summarizing the salient testimony, Judge Grant’s opinion sets forth her
reasoning in one paragraph:
In light of the foregoing, resolution of this motion turns
exclusively on the factual dispute. The Court believes the evidence
compels a finding in Defendant’s favor. First and foremost, Attorney
Halpern’s confirming letter must be given great weight, as it describes in
detail the consideration that Abood was to receive and, in fact, actually
ended up receiving. Moreover, there can be no dispute that the letter was
sent, as it was discovered in the Prosecutor’s file. The allegations in the
letter were further corroborated by the telephone message from Fresard
and the testimony of James Howarth [reflecting Fresard’s and Suhy’s
understanding that Abood had been given reason to expect favorable
treatment in exchange for his cooperation]. In light of this evidence, the
Court simply cannot imagine a plausible scenario under which these
events would have occurred in the absence of Abood having received a
charge reduction deal in exchange for his testimony against Defendant.
Therefore, Defendant has established that his due process rights were
violated, and is entitled to a new trial.
Order and Opinion 5/30/02, JA 1516-17. Judge Grant thus held that the prosecution’s
failure to disclose to Akrawi what it knew about its communications with Abood that
may have induced him to testify was a failure to disclose material impeachment
evidence, contrary to Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States,
450 U.S. 150 (1972), and United States v. Bagley, 473 U.S. 667 (1985).
Before a new trial could be conducted, however, the Michigan Court of Appeals
reversed the grant of relief from judgment on December 9, 2003. The court cited three
reasons. First, the court held that Akrawi had failed to show good cause for his failure
to raise this issue in his direct appeal, a prerequisite to relief from judgment under Mich.
Ct. R. 6.508(D)(3). Second, the court held that Judge Grant clearly erred in finding that
Abood testified pursuant to an existing agreement or deal. The court of appeals
construed the record as showing that no agreement was reached until after Abood
testified. All earlier communications between law enforcement and Abood or Halpern
were deemed to relate only to “a future possibility of leniency,” something the
prosecution was not required to disclose. Third, the court held Akrawi had failed to
show actual prejudice stemming from the asserted nondisclosure:
No. 07-1984 Akrawi v. Booker Page 8
When we consider all the foregoing circumstances and testimony,
further disclosure of a possible deal would not have resulted in a different
outcome at trial. As discussed, evidence was presented to the jury that
Abood would potentially receive consideration for his testimony, and
Abood was not the most significant witness testifying against defendant.
The introduction of more details of Abood’s future deal with the
Macomb County Prosecutor would not have changed the outcome of
defendant’s trial.
Unpublished Opinion 12/9/03, JA 185. The Michigan Supreme Court denied leave to
appeal on December 29, 2004 in a one-sentence order.
C. Habeas Petition
On November 29, 2005, Akrawi filed his petition for writ of habeas corpus in the
Eastern District of Michigan, naming as respondent Raymond Booker, Warden of the
Ryan Correctional Facility in Detroit. In relevant part, the petition asserts that petitioner
was denied his constitutional right to a fair trial when the prosecution and crucial witness
not only failed to disclose, but arbitrarily and deliberately acted in covin concert to
conceal the fact that the witness was accorded a substantial deal in exchange for his
highly suspect testimony. The district court denied the petition in an opinion and order
dated June 30, 2007. The district court acknowledged the warden’s statute-of-limitations
and procedural-default defenses, but refrained from addressing them because they are
not jurisdictional defenses. On the merits, the district court agreed with petitioner that
the prosecution had wrongfully suppressed evidence favorable to Akrawi:
The record indicates that, although there was no formal deal
between Wissam Abood or his attorney and Macomb County officials at
the time of Petitioner’s trial, there was at least an informal agreement to
reduce the charges against him in return for his testimony against
Petitioner and others. And because Abood and law enforcement officials
denied the existence of a deal, it was unreasonable for the state appellate
court to conclude that the prosecutor did not withhold favorable evidence
from Petitioner.
No. 07-1984 Akrawi v. Booker Page 9
Opinion and order 6/30/07, JA 1678.5 However, the district court agreed with the
Michigan Court of Appeals that the prosecution’s nondisclosure of the informal
agreement did not result in such actual prejudice to Akrawi as to warrant habeas relief.
The district court recognized that reasonable jurists could debate the resolution of this
question of prejudice and so granted a certificate of appealability on this lone issue.
On appeal, Akrawi insists that the prosecution suppressed material exculpatory
evidence and then compounded the wrong by concealing it through perjury, resulting in
“structural error” mandating relief to restore the integrity and public reputation of the
judicial proceedings.
II. ANALYSIS
A. Statute of Limitations
Warden Booker timely raised a statute-of-limitations defense in his response to
the habeas petition. The Warden argued, and Akrawi has not disputed, that the habeas
petition is governed by the one-year period of limitation established by the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”) at 28 U.S.C. § 2244(d). The
Warden demonstrated that even though the running of the statute was tolled during the
pendency of Akrawi’s pursuit of post-conviction relief in the Michigan courts, the
instant petition was not filed until 154 days after his one-year period had expired. The
Warden has reiterated the defense on appeal.
5
By the time the district court addressed the merits of the habeas petition, Akrawi had further
supplemented the record with the affidavit of former Macomb County Prosecuting Attorney Carl Marlinga.
The affidavit was signed on June 13, 2007 and filed in the district court on June 14. The filing of the
affidavit was not objected to by the Warden, and the district court received it and considered it without any
comment on its untimeliness.
Marlinga attests that, in connection with Abood’s cooperation, he made an exception to his
standing policy regarding plea bargains with major drug dealers. Specifically, he delegated his authority
to approve a reduction in charges to officials managing the Akrawi investigation, i.e., Pappas and Fresard.
While Marlinga does not know what promises were made and does not believe any express agreement or
promise was made, he confirms that his “representatives were authorized to give Abood reason to believe
that if he delivered, we would deliver.”
Marlinga’s affidavit does not substantiate the existence of an express agreement, but contradicts
Fresard’s and Pappas’s testimony that they lacked authority to enter into a charge-reduction agreement and
tends to undermine their credibility.
No. 07-1984 Akrawi v. Booker Page 10
In response, Akrawi has not challenged the Warden’s time calculations, in the
district court or on appeal. Nor has he attempted to invoke the doctrine of equitable
tolling. See Keenan v. Bagley, 400 F.3d 417,420 (6th Cir. 2005) (petitioner bears the
burden of showing entitlement to equitable tolling); Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005) (petitioner must establish “(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.”). Nor has Akrawi
attempted to avoid the time-bar through a showing of actual innocence. See Ross v.
Berghuis, 417 F.3d 552, 555-56 (6th Cir. 2005) (assuming the applicability of the actual-
innocence equitable-tolling rule to a non-capital case, petitioner must demonstrate by
presentation of new reliable evidence that he did not commit the acts for which he was
convicted).
The district court addressed the merits of the petition without ruling on the statute
of limitations defense, observing that the defense is not jurisdictional. Yet, though the
defense is not jurisdictional, it has been timely asserted by the Warden, and per the
restrictions on habeas relief prescribed by Congress in AEDPA, effectively bars relief
absent a showing that the petition’s untimeliness should be excused based on equitable
tolling and actual innocence. McCray v. Vasbinder, 499 F.3d 568 (6th Cir. 2007)
(reversing order granting habeas relief because the “gateway requirements” for excusing
a time-barred petition—i.e., equitable tolling and actual innocence—had not been
satisfied); Connolly v. Howes, 304 F. App’x 412 (6th Cir. 2008) (unpublished)
(upholding dismissal of time-barred petition and observing that equitable tolling requires
credible new evidence of actual innocence).
Petitioner Akrawi does not deny that his petition is untimely. Nor has he even
attempted to carry his burden of showing entitlement to equitable tolling. It follows that
the petition should have been dismissed. Yet, for the reasons that follow, we conclude,
like the district court, that even if the merits of the petition were considered, the result
would be the same: Akrawi is not entitled to habeas relief.
No. 07-1984 Akrawi v. Booker Page 11
B. Procedural Default
The Warden also timely asserted procedural default as a defense, in the district
court and on appeal. Indeed, the Michigan Court of Appeals, as its first reason for
reversing the grant of post-conviction relief, cited Akrawi’s failure to show (1) good
cause for his failure to assert this issue in his direct appeal, and (2) that the error resulted
in actual prejudice, as required for relief under Mich. Ct. R. 6.508(D)(3). JA 183-84.
The Michigan Supreme Court denied leave to appeal in a one-sentence order, stating
simply “we are not persuaded that the question presented should be reviewed by this
Court.” People v. Akrawi, 471 Mich. 944, 690 N.W.2d 104 (Table) (2004).
Federal courts ordinarily “will not review a question of federal law decided by
a state court if the decision of that court rests on a state law ground that is independent
of the federal question and adequate to support the judgment.” Howard v. Bouchard,
405 F.3d 459, 475 (6th Cir. 2005) (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991)). For purposes of procedural default, the federal court is concerned with the “last
explained state court judgment.” Id. at 475-76 (quoting Munson v. Kapture, 384 F.3d
310, 314 (6th Cir. 2004)). Here, the Michigan Court of Appeals ruling is clearly the last
explained state court judgment. It expressly relied at least in part on the unmet
requirements of Mich. Ct. R. 6.508(D)(3) as a reason for denying post-conviction relief.
It is well-established in this circuit that the procedural bar set forth in Rule 6.508(D)
constitutes an adequate and independent ground on which the Michigan courts may rely
in foreclosing review of federal claims. Howard, 405 F.3d at 477.
Nonetheless, again, the district court opted to ignore the defense in favor of
addressing the merits of Akrawi’s claim, “in the interest of judicial economy.” In
defense of this ruling, Akrawi argues that even if procedural default is in play, his
default is excused by an adequate showing of “cause and prejudice.” See Coleman, 501
U.S. at 750 (recognizing that the procedural bar can be avoided if the petitioner “can
demonstrate cause for the default and actual prejudice as a result of the alleged violation
of federal law”). Akrawi contends the “cause and prejudice” requirements are satisfied
by the same facts that establish his habeas claim, i.e., the prosecution’s active
No. 07-1984 Akrawi v. Booker Page 12
concealment of its Brady violation, which deprived him of a fair trial. He correctly
argues that evaluating the cause-and-prejudice requirements requires an analysis that
mirrors the analysis implicated by the merits of Akrawi’s habeas claim, thus revealing
the wisdom in the district court’s “judicial economy” rationale. Indeed, the Sixth Circuit
adopted this very approach under very similar circumstances in Bell v. Bell, 512 F.3d
223 (6th Cir. 2008) (en banc):
“[T]he cause and prejudice standard tracks the last two elements of a
Brady claim: suppression by the government and materiality. . . . We
therefore choose to focus our attention on the merits of Bell’s claim with
the understanding that our decision on the merits resolves any issues as
to procedural default.
Id. at 231 n.3 (citations omitted).
We adopt the same approach in this case, looking past procedural default to
address the merits, because Akrawi, if he succeeds in showing suppression of favorable
evidence material to guilt or innocence, will have necessarily shown cause and prejudice
excusing his procedural default.
C. Merits of the Brady Claim
1. Standard of Review
There is no dispute about the standard of review. AEDPA applies. It follows
that although the Court reviews the district court’s legal conclusions de novo and its fact
findings for clear error, the Court may not grant habeas relief unless the state court’s
decision was “contrary to, or an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States; or . . . was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” Irick v. Bell, 565 F.3d 315, 319-20 (6th Cir. 2009) (quoting 28
U.S.C. § 2254(d)(1)-(2)). In applying clearly established Supreme Court precedent, the
court looks to the holdings, as opposed to dicta, of the Supreme Court’s decisions as of
the time of the relevant state-court decision. Lockyer v. Andrade, 538 U.S. 63, 71
(2003).
No. 07-1984 Akrawi v. Booker Page 13
The governing substantive standards are also summarized in Irick :
In Brady [v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194, 10 L.Ed.2d 215(1963)], the Supreme Court held “that the suppression by the prosecution
of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87,
83 S.Ct. 1194. “‘There are three components of a true Brady violation:
the evidence at issue must be favorable to the accused, either because it
is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.’” Owens [v. Guida], 549 F.3d [399] at 415 [(6th Cir.
2008)] (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct.
1936, 144 L.Ed.2d 286 (1999)). A defendant is prejudiced when there is
“a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Kyles
v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490(1995) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.
3375, 87 L.Ed.2d 481 (1985)).
Irick, 565 F.3d at 321.
The extent to which the rule of Brady requires disclosure not just of evidence of
formal cooperation agreements, but also evidence of informal communications between
the prosecution and a witness, has received significant attention in recent Sixth Circuit
case law. In Bell v. Bell, the court noted that “[i]t is well established that an express
agreement between the prosecution and a witness is possible impeachment material that
must be turned over under Brady.” 512 F.3d at 233. However, “[t]he existence of a less
formal, unwritten or tacit agreement is also subject to Brady’s disclosure mandate.” Id.(citing Wisehart v. Davis, 408 F.3d 321, 323-24 (7th Cir. 2005)). “Brady is not limited
to formal plea bargains, immunity deals or other notarized commitments. It applies to
‘less formal, unwritten, or tacit agreement[s],’ so long as the prosecution offers the
witness a benefit in exchange for his cooperation, . . . so long in other words as the
evidence is ‘favorable to the accused.’” Harris v. Lafler, 553 F.3d 1028, 1034 (6th Cir.
2009) (quoting Bell, 512 F.3d at 233, and Bagley, 473 U.S. at 678).
Yet, the mere fact that a witness desires or expects favorable treatment in return
for his testimony is insufficient; there must be some assurance or promise from the
No. 07-1984 Akrawi v. Booker Page 14
prosecution that gives rise to a mutual understanding or tacit agreement. Bell, 512 F.3d
at 233. Further, the mere fact of favorable treatment received by a witness following
cooperation is also insufficient to substantiate the existence of an agreement. “[I]t is not
the case that, if the government chooses to provide assistance to a witness following
trial, a court must necessarily infer a preexisting deal subject to disclosure under Brady.”
Id. at 234. “The government is free to reward witnesses for their cooperation with
favorable treatment in pending criminal cases without disclosing to the defendant its
intention to do so, provided that it does not promise anything to the witness prior to the
testimony.” Id. (quoting Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003) (emphasis
in original)).
2. Mutual Understanding
Applying these standards, the question emerges whether the prosecution made
assurances or representations to Abood suggesting the existence of a mutual
understanding or tacit agreement—evidence favorable to Akrawi because of its
impeachment value. The district court, after considering the evidence presented at trial
and the later evidentiary hearing, answered this question in the affirmative. It concluded
that while there was no formal agreement between Abood and Macomb County officials,
there was an informal agreement to reduce the charges against him in return for his
testimony. The court concluded that the Michigan appellate court’s contrary conclusion
was based on an unreasonable application of clearly established federal law.
Indeed, the Michigan appellate court’s analysis seems to have been based on two
fundamental errors of law. First, the appellate court recognized a duty to disclose only
formal plea agreements approved by the prosecutor. Yet, as Bell recognizes, even
unspoken, tacit agreements or mutual understandings may constitute evidence favorable
to the accused that must be disclosed. Second, the Brady disclosure requirement
“applies to relevant evidence in the hands of the police, whether the prosecutors knew
about it or not, whether they suppressed it intentionally or not, . . . and whether the
accused asked for it or not.” Harris, 553 F.3d at 1033. The notion, relied on by the
Michigan appellate court, that communications by police officers need not be disclosed
No. 07-1984 Akrawi v. Booker Page 15
unless approved by the prosecutor flies in the face of the prosecutor’s “duty to learn of
any favorable evidence known to others acting on the government’s behalf . . . including
the police.” Id. (quoting Strickler, 527 U.S. 280-81).
Moreover, the district court’s determination that communications between
Pappas, Fresard and Suhy, on behalf of the prosecution, and Abood and his attorney
Halpern gave rise to an informal agreement, or mutual understanding, is well supported
by the record. Even though Pappas, Fresard and Suhy consistently maintained that no
promises or express agreements were made, and even if this testimony were accepted on
its face as true, the fact remains that all three acknowledged understanding that Abood’s
cooperation could result in reduction of the charges against him . . . an understanding
consistent with Abood’s and Halpern’s manifest understanding—i.e., a tacit but mutual
understanding. The prosecution team’s knowledge of this mutual understanding,
stemming from communications between the prosecution and Abood and his counsel,
represents knowledge of communications that could have been used by Akrawi in
impeaching Abood and therefore constitutes “Brady material” that should have been
disclosed. See Harris, 553 F.3d at 1033 (holding that statements by police to witness
that his girlfriend would be released if they were satisfied with his cooperation, that he
would be released if he testified consistently at a preliminary examination, and that he
should not tell anyone about the police promises constituted Brady material the
nondisclosure of which resulted in cognizable prejudice requiring habeas relief).
Accordingly, we hold that the Michigan appellate court’s ruling that the
prosecution did not breach its duty under Brady represents an unreasonable application
of clearly established federal law.6
6
This scope of Brady’s requirements was clearly established when the Michigan Court of Appeals
ruled in December 2003. In analogous circumstances, the Harris court, applying AEDPA review, held
a contrary 2001 Michigan Court of Appeals ruling to be an unreasonable application of clearly established
federal law. Inasmuch as Harris stands for the proposition that Brady’s application to tacit agreements
was clearly established in 2001, it must be deemed clearly established in 2003 as well. See Smith v.
Stegall, 385 F.3d 993, 998 (6th Cir. 2004) (“We are bound by any prior Sixth Circuit decisions concluding
that federal law on a particular issue has been ‘clearly established’ by certain holdings of the Supreme
Court.”).
No. 07-1984 Akrawi v. Booker Page 16
3. Prejudice
Yet, the prosecution’s violation of its Brady duty of disclosure warrants habeas
relief only if there is “a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.” Kyles, 514 U.S. at
433-34. On this point, the district court agreed with the Michigan Court of Appeals that
Akrawi was not prejudiced by the prosecution’s misconduct.7 The two courts agreed
that although no direct evidence of an informal agreement or mutual understanding
between Abood and the prosecution was introduced, the jury heard substantial evidence
of the potential for a charge-reduction deal. Indeed, as the foregoing summary of
relevant trial proceedings demonstrates, Akrawi’s counsel did not fail to take advantage
of this evidence to impugn Abood’s credibility. Howarth’s cross-examination of Abood
would arguably have been more effective if evidence of the mutual understanding had
been disclosed prior to trial, but only incrementally so. There is no reason to believe that
disclosure of the additional impeachment evidence would have so altered the jury’s
assessment of Abood’s already suspect credibility as to give rise to a reasonable
probability that the outcome of the trial would have been different.
Further, both the district court and the Michigan appellate court recognized that
the prosecution’s case against Akrawi was not totally dependent on Abood’s testimony.
Even more damning was the testimony of Rene Arias, who also implicated Akrawi in
significant cocaine trafficking. Thus, unlike the situation posed in Harris, 553 F.3d at
1034, where the nondisclosure of impeachment evidence was deemed to cause actual
prejudice because the prosecution’s case hinged on the testimony of one witness,
Abood’s testimony was not the “centerpiece” of the prosecution’s case against Akrawi.
Akrawi recognizes the importance of Arias’s testimony, but argues that Arias’s
credibility, like Abood’s, is suspect. Akrawi insists that there was little physical
evidence linking him to the conspiracy, that the prosecution’s case was based largely on
7
The Oakland County Circuit Court, in originally finding a Brady violation and granting relief
from judgment, did not expressly consider whether the violation resulted in prejudice. Thus, no court that
has visited the issue has found cognizable prejudice to Akrawi.
No. 07-1984 Akrawi v. Booker Page 17
suspect testimony of cooperating accomplices, and that the evidence against him was not
overwhelming. Still, the nondisclosure of the mutual understanding with Abood has not
been shown to be such a failure as to “put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles, 514 U.S. at 435. Considering the trial
evidence collectively, as the court must, see id. at 436, it can hardly be said that the state
appellate court’s conclusion on the question of actual prejudice represents an
unreasonable application of Supreme Court precedent. The district court’s concurrence
in the state court’s analysis of the prejudice element must therefore be upheld.
4. Structural Error
Akrawi insists that this is no ordinary Brady violation. Not only did the
prosecution suppress impeachment evidence, but, Akrawi argues, the prosecution also
sponsored perjured testimony to conceal the suppressed evidence, thereby compounding
the wrong. This “Brady-plus” prosecutorial misconduct is said to amount to “structural
error” that demands relief to vindicate the integrity of the judicial process, irrespective
of a showing of actual prejudice.
A false-testimony claim is cognizable in habeas because the “deliberate
deception of a court and jurors by the presentation of known false evidence is
incompatible with rudimentary demands of justice.” Abdus-Samad v. Bell, 420 F.3d 614,
625 (6th Cir. 2005) (quoting Giglio v. United States, 405 U.S. 150, 153 (1972)). To
prevail on such a claim, Akrawi must show “(1) that the prosecution presented false
testimony (2) that the prosecution knew was false, and (3) that was material.” Id. at 625-
26. The subject statement must be “indisputably false” rather than “merely misleading.”
Id. at 626 (quoting Byrd v. Collins, 209 F.3d 486, 517-18 (6th Cir. 2000)).
Akrawi identifies as perjured testimony (1) Abood’s testimony that he was not
promised anything in return for his testimony, which was falsely corroborated by
Pappas, Fresard and Suhy; and (2) the testimony of Pappas and Fresard to the effect that
they lacked authority to grant Abood a charge-reduction, which was refuted by
Marlinga’s 2007 affidavit. With respect to the first item, we conclude, viewing the
No. 07-1984 Akrawi v. Booker Page 18
record as a whole, that the no-promise-or-agreement testimony was misleading, but has
not been shown to be undisputably false. Inasmuch as there appears to have been no
express promise or agreement, the testimony was technically accurate. While the record
clearly shows that both Abood and members of the prosecution team understood or
expected that Abood’s cooperation would or could result in a reduction of the charges
pending against him, there is scant evidence of an actual meeting of the minds.
As to the second item, Marlinga’s late-filed affidavit creates a question regarding
the truthfulness of Pappas’s and Fresard’s testimony that they lacked authority; it does
not establish perjury. The weight to be assigned to the Marlinga affidavit is a threshold
question. We note that Marlinga did not testify at trial or in the evidentiary hearing. He
was never subject to cross-examination. The Marlinga affidavit was filed in the district
court sixteen years after the subject Akrawi investigation and prosecution and just days
before the district court issued its ruling on the habeas petition. It was simply filed,
without explanation. No leave to supplement the record with newly discovered evidence
was sought or obtained. Yet, no objection was or has been interposed by the Warden.
Nor has the Warden attempted to otherwise respond to the contents of the affidavit. In
sum, we find no reason to give Marlinga’s sixteen-year-old memory controlling weight
over the arguably contrary testimony of Pappas and Fresard given at trial in 1991 and
in the evidentiary hearing in 2001.
Further, even if Marlinga did delegate charge-reduction authority to Pappas and
Fresard, and they knew it, they could have been understandably reluctant to exercise it
by making promises to an offender facing life in prison without supervisory approval.
It is entirely plausible, in other words, that they believed and acted as though they lacked
actual authority, despite Marlinga’s attempt to delegate it. Moreover, even assuming
Pappas and Fresard knowingly testified falsely as to their authority, their false statements
are hardly “material.” Irrespective of their authority, the record is clear that they did not
exercise it by making any express quid pro quo promise or agreement prior to Abood’s
trial testimony. And if they had testified that they did have authority and did make
comments or representations about the possibility of future favorable treatment that may
No. 07-1984 Akrawi v. Booker Page 19
have induced Abood’s cooperation, then the record would not have been materially
changed, because, as discussed above, the jury heard significant testimony of both their
understanding and Abood’s understanding that Abood’s cooperation could result in
leniency.
It follows that the factual discrepancies which Akrawi calls prosecution-
sponsored perjury are of relatively minor significance. They are not indicative of the
sort of “structural error” that could justify automatic reversal. See United States v.
Kuehne, 547 F.3d 667, 681 (6th Cir. 2008) (“Structural errors reflect ‘a defect affecting
the framework within which the trial proceeds, rather than simply error in the trial
process itself.’”); United States v. Kimbrel, 532 F.3d 461, 469 (6th Cir. 2008) (defining
structural errors as errors that affect the “entire conduct of the trial from beginning to
end”); Hereford v. Warren, 536 F.3d 523, 529 (6th Cir. 2008) (noting that structural
error has been found “only in a very limited class of cases”).
III. CONCLUSION
In sum, petitioner Akrawi has succeeded in demonstrating that the prosecution
violated the rule of Brady by suppressing evidence of its communications with Abood
that were mutually understood as justifying the expectation that his cooperation could
result in a reduction of the charges against him. He has failed to demonstrate, however,
that this nondisclosure resulted in such actual prejudice as to warrant habeas relief. He
has also failed to show structural error warranting automatic reversal. The district
court’s holding that the Michigan appellate court did not unreasonably apply clearly
established federal law in denying Akrawi relief from judgment is therefore
AFFIRMED.