Glen Reed v. United States ( 1997 )

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No. 96-1185
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Glen Reed, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas
United States of America, *
*
Appellee. *
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Submitted: September 12, 1996
Filed: February 5, 1997
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Before McMILLIAN, LAY and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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McMILLIAN, Circuit Judge.
Glen Reed, a federal inmate, appeals from a final order entered in
the United States District Court1 for the Western District of Arkansas,
adopting the report and recommendation of the
magistrate judge2 and denying Reed's petition for post-conviction relief
pursuant to 28 U.S.C. § 2255. United States v. Reed, Civil No. 95-5061
(W.D. Ark. Nov. 17, 1995) (order). For reversal, Reed argues that the
district court erred in holding (1) his due process and confrontation
rights were not violated by the government's failure to disclose that a key
witness had been granted immunity in exchange for testifying against him
and (2) his Sixth Amendment right to effective assistance of trial counsel
was not violated.
1
The Honorable H. Franklin Waters, Chief Judge, United States
District Court for the Western District of Arkansas.
2
The Honorable Beverly R. Stites, United States Magistrate
Judge for the Western District of Arkansas.
For the reasons discussed below, we affirm the order of the district court.
BACKGROUND
FACTS RELATED TO PETITIONER'S CONVICTION
On November 4, 1993, Reed, a former accountant in Fayetteville,
Arkansas, and Ezra "Scotty" Maglothin, Jr., a former attorney, were
indicted in federal court as co-defendants on three counts of mail fraud
in violation of 18 U.S.C. § 1341, one count of aiding and abetting mail
fraud in violation of 18 U.S.C. § 2, and one count of theft of government
property in violation of 18 U.S.C. § 541. These charges against Reed and
Maglothin stemmed from an alleged scheme to steal money from Maglothin's
clients by fraudulently converting, for their own use, client money
deposited in a trust account maintained by Maglothin at a Fayetteville
bank.
On December 7, 1993, Maglothin filed a motion to sever the trial,
which the district court granted. Maglothin, at his own trial, testified
that Reed stole money from the clients without authorization. He denied
having any fraudulent intent in his actions involving bank statements and
other correspondence. On March 2, 1994, Maglothin was acquitted on all
counts. On March 3, 1994, Reed's trial began, and Maglothin was subpoenaed
by the prosecution to testify during Reed's trial. Maglothin again denied
any criminal wrongdoing, testifying that his intent was to protect and
invest the clients' money rather than to defraud the clients.
On March 7, 1994, the jury convicted Reed on three counts of mail
fraud and a fourth count of theft of government property. Reed's theft of
government property conviction was set aside on a motion for judgment of
acquittal. United States v. Reed, 851 F. Supp. 1296, 1309-12 (W.D. Ark.
1994). The district court sentenced Reed to 24 months imprisonment, two
years supervised
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release, and restitution in the amount of $193,301.29. On appeal, Reed
argued the evidence was insufficient to prove mail fraud, but this court
disagreed and affirmed his convictions on those three counts. Id., 47 F.3d
288 (8th Cir. 1995).
FACTS RELATED TO NONDISCLOSURE OF IMMUNITY ALLEGATION
After Maglothin's and Reed's federal trials, the State of Arkansas
charged Maglothin with theft of property. Maglothin moved to dismiss the
state charges on the ground that he had been granted "use immunity" for his
testimony during Reed's trial. Jim Rose, Maglothin's attorney throughout
the federal trial and subsequent proceedings, testified as a witness at a
pretrial hearing that, prior to Reed's trial, Rose discussed immunity for
Maglothin with P.K. Holmes, the U. S. Attorney who prosecuted Reed's case,
and that Holmes had orally agreed to grant Maglothin use immunity. Holmes
testified that he first became aware of the use immunity issue after
Maglothin filed the motion to dismiss the criminal charges in state court.
Holmes testified that he distinctly remembered rejecting Rose's request for
full immunity for Maglothin the day before Reed's trial began, and he did
not recall telling Rose he would grant Maglothin use immunity. However,
Holmes qualified his testimony by stating that Rose was known to him as a
trustworthy and honorable person and, even though he (Holmes) had no
recollection of granting use immunity, "[t]hat doesn't mean I didn't say
it." Holmes testified that he never intended to offer any kind of immunity
because he had no intention of further prosecuting Maglothin. Holmes also
testified that he was never asked to put any immunity agreement in writing
or on the record.
The state trial court found that there was no proof of any immunity
agreement between Maglothin and the government, and thus, no immunity
existed; accordingly, the state trial court denied Maglothin's motion to
dismiss the charges against him. State v. Maglothin, No. CR 94-443 (Ark.
Cir. Ct. Washington County Sept. 16,
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1994). Maglothin was convicted in state court on four counts of theft of
property and sentenced to twelve years imprisonment. On appeal, the
Arkansas Court of Appeals affirmed. Maglothin v. State, 924 S.W.2d 468
(Ark. Ct. App. 1996).
In the meantime, Reed had filed a § 2255 petition alleging that (1)
the government failed to disclose that Maglothin had been granted use
immunity, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and (2)
his trial counsel was ineffective under Strickland v. Washington, 466 U.S.
668 (1984). An evidentiary hearing was held before a magistrate judge, who
recommended that Reed's § 2255 petition be denied. Reed's trial attorney,
R. David Lewis, testified that the first time he became aware of any use
immunity concerning Maglothin was at the § 2255 hearing. After receiving
additional testimony from Maglothin and Rose, the magistrate judge reviewed
the transcript of the state court pretrial hearing on Maglothin's motion
to dismiss his criminal case on the ground of use immunity. The magistrate
judge found that Maglothin had not been granted use immunity pursuant to
18 U.S.C. § 6003. United States v. Reed, Civil No. 95-5061, slip op. at
7 (W.D. Ark. Oct. 23, 1995) (report and recommendation). The magistrate
judge further held that, even assuming there had been an oral grant of use
immunity, the government's failure to disclose it was not material for
purposes of applying Brady v. Maryland3 nor did it actually prejudice Reed
for purposes of Strickland v. Washington.4 Id. at 10.
3
Brady v. Maryland, 373 U.S. 83, 87 (1963), 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."
4
Under Strickland v. Washington, 466 U.S. 668, 687, 694
(1984), a convicted defendant's claim of ineffective assistance of
counsel requires that the defendant show (1) counsel's performance
was deficient and (2) that deficient performance prejudiced the
defense such that, but for counsel's errors, the result of the
proceeding
would have been different.
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ADDITIONAL FACTS RELATED TO INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Prior to Reed's criminal trial, Reed's trial attorney requested that
Maglothin send him copies of each and every check which Maglothin claimed
Reed wrote without Maglothin's authority. Maglothin sent copies to Reed's
attorney, via facsimile transmission, of six checks totaling $1,270.00.
At Reed's trial, Maglothin testified that Reed allegedly took a much larger
amount of money without authorization. Maglothin was not questioned about
the facsimile transmitted checks, but the copies of the checks which
Maglothin sent to Reed's attorney were admitted into evidence during Reed's
testimony that he had specifically asked Maglothin to designate any
unauthorized checks. The government objected to such testimony, but the
district court found it admissible to impeach Maglothin's testimony and
overruled the government's objection.
At the § 2255 hearing, Maglothin testified that the facsimile copies
of the checks were not inclusive but only examples of numerous unauthorized
checks. Reed's trial attorney testified that he did not cross-examine
Maglothin about the six checks because acknowledging that those checks were
unauthorized would have been inconsistent with Reed's theory of defense
that he had done nothing wrong and that Maglothin had authorized him to
write the checks.
The magistrate judge found that Reed's trial counsel had not been
ineffective. The magistrate judge found that the facsimile transmissions
of the checks and related conversations were admitted into evidence during
Reed's testimony and that additional cross-examination of Maglothin would
not have changed the outcome of the trial. Id.
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Reviewing the case de novo, the district court adopted the findings
and recommendations of the magistrate judge and denied Reed's § 2255
petition. This appeal followed.
DISCUSSION
USE IMMUNITY
In § 2255 proceedings, this court reviews a district court's
conclusions of law de novo. United States v. Duke, 50 F.3d 571, 576 (8th
Cir.), cert. denied, 116 S. Ct. 224 (1995). Reed argues that the
government's failure to disclose the grant of use immunity to Maglothin
violated his right to due process. Reed argues that the district court
erred in concluding that the disclosure of Maglothin's alleged use immunity
would not have affected the outcome of his trial. Reed maintains that
Maglothin agreed to testify as a government witness at Reed's trial only
because he had been granted use immunity and that, if the jury had known
that Maglothin had been granted use immunity (or even that Maglothin
believed that he had been granted use immunity), the jury would have
attributed less credibility to Maglothin's testimony. See Giglio v. United
States, 405 U.S. 150, 154 (1972) (non-disclosure of evidence affecting the
credibility of a witness falls within the scope of Brady v. Maryland).
Reed also argues that the non-disclosure of any evidence that motivated
Maglothin to embellish or fabricate his testimony violated his
confrontation right under the Sixth Amendment. Reed defines the issue
before this court as whether the government failed to disclose information
with impeachment value and not whether the formalities regarding the
granting of statutory immunity were observed.
The government argues that there was no failure to disclose the grant
of use immunity because no use immunity agreement existed. We agree.
Under 18 U.S.C. §§ 6002 and 6003, a U.S. Attorney may request a court order
compelling testimony necessary
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to the public interest when an individual invokes the privilege against
self-incrimination, and the compelled testimony or information directly or
indirectly derived from the testimony may not be used against the witness
in any criminal case except for a prosecution for perjury. See Kastigar
v. United States, 406 U.S. 441 (1972). Statutory use immunity can only be
granted upon request of the Attorney General. United States v. Robaina,
39 F.3d 858, 863 (8th Cir. 1994). We agree with the district court that
Maglothin was not granted use immunity. First, there was no evidence that
the U.S. Attorney at any time sought an application for use immunity
pursuant to 18 U.S.C. §§ 6002 and 6003. Second, the U.S. Attorney did not
orally agree to grant use immunity to Maglothin. Moreover, the government
had no reason to assume that Maglothin believed he had been granted
statutory immunity.
In the alternative, Reed reiterates his argument made in state court
that, while his use immunity did not arise directly under 18 U.S.C. §§ 6002
and 6003 because the Attorney General did not approve the grant of such
immunity, the facts of his case nevertheless created "equitable immunity"
because the prosecutor made an express oral promise of immunity in exchange
for Maglothin's testimony against Reed. Although the concept of equitable
immunity is not well defined, Rowe v. Griffin, 676 F.2d 524, 526 n.3 (11th
Cir. 1982), "the underlying principle is that when a promise of immunity
induces a defendant to . . . cooperate with the government to his [or her]
detriment, due process requires that the prosecutor's promise be
fulfilled." United States v. Fuzer, 18 F.3d 517, 521 (7th Cir. 1994).5
Maglothin argues that
5
The Fifth, Sixth, Seventh, and Eleventh Circuits and several
district courts have addressed the concept of equitable immunity.
See United States v. Fuzer, 18 F.3d 517, 521 (7th Cir. 1994);
United States v. Weaver, 905 F.2d 1466, 1471-74 (11th Cir. 1990),
cert. denied, 498 U.S. 1091 (1991); United States v. Keith, 764
F.2d 263, 264 n.1 (5th Cir. 1985); United States v. Short, 671 F.2d
178, 187 (6th Cir.), cert. denied, 457 U.S. 1119 (1982); United
States v. McLaughlin, 769 F. Supp. 45, 47 (D.N.H. 1991), aff'd, 957
F.2d 12 (1st Cir. 1992); Arkebauer v. Kiley, 751 F. Supp. 783, 788
(C.D. Ill. 1990), rev'd, 985 F.2d 1351 (7th Cir. 1993); United
States v. Cooke, 650 F. Supp. 991, 993 (D. Md. 1987); United States
v. Carpenter, 611 F. Supp. 768, 774-75 (N.D. Ga. 1985); United
States v. McBride, 571 F. Supp. 596, 615 (S.D. Tex. 1983), aff'd,
915 F.2d 1569 (5th Cir. 1990) (table). However, the doctrine of
equitable immunity has never been considered by the Eighth Circuit.
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equitable immunity is enforceable to the same extent as a formal grant of
immunity under 18 U.S.C. § 6003.
In analyzing Maglothin's equitable immunity theory, we agree with the
magistrate judge that there would have been no reason for the U.S. Attorney
to believe Maglothin would invoke his Fifth Amendment privilege against
compelled self-incrimination or that use immunity would be required to
obtain Maglothin's testimony because Maglothin had already testified in his
own trial that he had committed no criminal wrongdoing and blamed Reed for
the losses suffered by his clients. United States v. Reed, slip op. at 8
(Oct. 23, 1995). We further agree with the magistrate judge that, even
assuming the Eighth Circuit would recognize the doctrine of equitable
immunity, the government's failure to disclose the grant of use immunity
was not material for purposes of applying Brady v. Maryland nor did it
actually prejudice Reed for purposes of applying Strickland v. Washington.
Id. at 10. We conclude that the district court did not err in holding that
Reed failed to show a violation of his due process or confrontation rights.
INEFFECTIVE ASSISTANCE OF COUNSEL
We review the issue of ineffective assistance of counsel de novo and
review the district court's findings of underlying predicate facts under
the clearly erroneous standard. Auman v. United States, 67 F.3d 157, 162
(8th Cir. 1995). Reed argues that he received ineffective assistance of
counsel at trial because his trial attorney failed to cross-examine
Maglothin about the six checks which Maglothin sent to Reed's attorney.
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In order to establish a violation of the Sixth Amendment right to
effective assistance of counsel, a convicted defendant must establish that
(1) trial counsel's performance was deficient and (2) the deficient
performance prejudiced the defense so as to deprive the defendant of a fair
trial. Strickland v. Washington, 466 U.S. at 687; Sherron v. Norris, 69
F.3d 285, 290 (8th Cir. 1995). The proper standard for evaluating attorney
performance is that of reasonably effective assistance. Strickland v.
Washington, 466 U.S. at 687. The defendant must show that counsel's
representation fell below an objective standard of reasonableness. Id. at
688. Judicial scrutiny of counsel's performance must be highly deferential
and the court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance. Id. at
689. With regard to the required showing of actual prejudice, the
defendant must show that there is a reasonable probability that, but for
counsel's deficient performance, the result of the proceeding would have
been different. Id. at 694.
We agree with the magistrate judge's findings, adopted by the
district court, that (1) Reed failed to show that his trial attorney's
decision not to cross-examine Maglothin about the six checks was not sound
trial strategy and (2) even assuming his trial attorney should have cross-
examined Maglothin about the copies of the six checks, Reed failed to show
that his trial attorney's failure to do so actually prejudiced his defense.
We therefore conclude that the district court did not err in holding that
Reed was not denied effective assistance of counsel.
CONCLUSION
Accordingly, the order of the district court is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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