White v. U.S.
| Decision Date | 03 October 1988 |
| Docket Number | No. 87-2488,87-2488 |
| Citation | 858 F.2d 416 |
| Parties | Paul Anthony WHITE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Paul Anthony White, Kansas City, Mo., for appellant.
Anita L. Mortimer, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.
Paul Anthony White appeals from a final judgment entered in the District Court 1 for the Western District of Missouri denying his motion for relief under 28 U.S.C. Sec. 2255. After denying the element of interstate transportation, White entered an Alford plea 2 in 1982 to one count of transporting a minor across state lines for purposes of prostitution in violation of 18 U.S.C. Sec. 2423. For reversal White argues the district court erred in refusing to set aside his plea on the grounds that the sole witness has recanted the testimony which provided the only factual basis for the interstate element, and that the government failed to disclose evidence favorable to White on the issue of guilt, thereby rendering his plea unintelligent. For the reasons discussed below, we affirm the judgment of the district court.
White was an Assistant United States Attorney for the Western District of Missouri for approximately ten years, until December 1977. Around 1981 the FBI apparently focused on White in the course of an investigation, code-named "Northstone," into the interstate transportation of obscene matter. When possible state law violations were revealed, a joint investigation of White was undertaken in 1982 by Robert Reilley of the FBI and Gary Myers of the Kansas City (Missouri) Police Department. The two men agreed that Reilley would ask most of the questions during interviews, take the notes, and write all of the reports for both federal and state investigations.
On or about February 19, 1982, Reilley and Myers first interviewed Jerry Noble, then eighteen years old, regarding his knowledge of White's sexual activities with young males. Noble denied any sexual involvement with White. Reilley's FBI Form FD-302 report of the interview, which White later obtained through pretrial discovery, reflected that general denial, but did not mention Noble's negative response to Reilley's specific question whether White had ever transported him across state lines for purposes of prostitution. Reilley admitted the omission in a deposition in December 1985.
In a February 23 memorandum in the "Northstone" file (a document White claims was not given to him as part of the prosecution's file during discovery and was not known to him until 1985), Reilley stated he contacted Noble, "a potential witness in this investigation," at the city jail on February 20, 1982, where Noble was being held after his arrest for burglary. According to the memorandum, Reilley told Noble that "his cooperation with the FBI and the police department in an unrelated investigation would be called to the attention of the Jackson County [Missouri] Prosecutor's Office" regarding the burglary charge. Upon Noble's release, Reilley took him home and "asked [him] to continue with his cooperation concerning this investigation."
On March 1, 1982, Reilley and Myers again interviewed Noble, who indicated that he wanted to disclose the full extent of his contacts with White. Noble related numerous instances of White's paying him for sexual activities in various locations identifiable as being in Missouri. Again, Reilley's 302 report, given to White in discovery, did not mention Noble's specific denial of interstate transportation for purposes of prostitution. Reilley told of the denial in his 1985 deposition.
When Noble was scheduled to appear as a witness before the Jackson County grand jury on the state case against White, he indicated to Reilley and Myers that he was not going to cooperate. After his burglary arrest, however, Noble either sought or was offered a "deal" on that charge in exchange for his grand jury testimony. Sometime between March 1 and 4, 1982, Noble met with Reilley, Myers, and Patricia McGarry, an assistant prosecuting attorney for Jackson County. During this meeting in Reilley's car, McGarry essentially agreed that no burglary charge would be brought if Noble cooperated and testified before the state grand jury. Reilley admitted in his 1985 deposition that he did not prepare a report of this meeting, and that Noble made no claim of interstate transportation. At the time of his plea, White knew about this meeting and at least some aspects of the "deal" through a statement he obtained from Noble in May 1982, as discussed below.
On March 5, 1982, Noble testified before the Jackson County grand jury. Afterward, along with two other witnesses, Noble approached Reilley in the courthouse and, for the first time, claimed to Reilley that he had been transported interstate by White for purposes of prostitution. At Reilley's request, the three young men then accompanied Reilley in his car to Kansas where they pointed out specific locations of paid sexual acts with White. Although Reilley did not prepare a written report of these events, White knew generally about them through the statement he obtained from Noble.
On April 26, 1982, a federal grand jury returned a three-count indictment against White for transporting Noble and the other two minors from Missouri to Kansas for purposes of prostitution. At some later point, the other two youths retracted their statements of interstate transportation.
On May 13, 1982, Noble signed a sworn statement for White giving his version of his contacts with Reilley and Myers, including the meeting with McGarry (who, he claimed, had promised him seven years on the burglary if he did not testify against White). He stated he had testified mistakenly before the grand jury that he had "tricked" with White when in fact he had never done so. He also stated that after testifying, "to make the case look better" and to ensure he "would not get the seven years," he had shown Reilley a Kansas location where White had supposedly taken him for the purpose of "tricking." Noble further stated that after the trip to Kansas, he and the other two youths had all admitted to each other that their statements to the grand jury and to Reilley were not true.
On July 2, 1982, Chief Magistrate Calvin K. Hamilton held a hearing on the government's motion to revoke White's bond (based, apparently, on a claim that White had obstructed justice by taking statements from witnesses). At the hearing, the government informed the court that it had promised Noble nothing in return for his testimony.
Noble testified on direct examination that he had participated in sexual acts with White for money on many occasions, one of which occurred in Kansas; that White had asked him to sign the sworn statement in exchange for which White would pay Noble's attorney fees in the event he had legal problems; that the statements regarding never "tricking" with White or crossing the state line were false; and that White had provided a cashier's check for $3,500 for Noble's lawyer.
Noble testified on cross-examination that he had been promised a maximum sentence on the burglary charge if he did not testify before the grand jury about White, but that he had already given "all the statements" (apparently meaning, to Reilley) before meeting with McGarry. This contradicts Reilley's later deposition testimony that Noble first claimed interstate transportation on March 5, after the meeting with McGarry.
White originally pleaded not guilty. On July 19, 1982, Judge Bartlett conducted a hearing to consider a proposed plea agreement and change of plea. Under the agreement, White would admit to certain facts in connection with pending state charges, and ten one-count indictments in Clay County and one nine-count indictment in Jackson County would be dismissed; two counts of the federal indictment would be dismissed; and the government would agree not to file obstruction of justice charges against White. In accordance with the agreement, White tendered to the court an Alford plea of guilty to the count of the indictment relating to Noble. White admitted every element of the offense except interstate transportation; he steadfastly maintained that all contact with Noble occurred in Missouri.
The court inquired at length into the voluntariness of the plea and its factual basis. Among other things, the court asked the government what evidence would be offered at trial to prove interstate transportation. The government responded that Noble would testify that White drove him from Kansas City, Missouri, into Kansas, engaged him in a sexual act, and drove him back to Kansas City, Missouri, where he paid him. The government also noted Noble's prior sworn testimony at the July 2 hearing that on one occasion White had transported him to Kansas where a sexual act occurred. The court further inquired about other considerations for the plea, the adequacy of White's legal counsel, the proposed plea agreement, and any predictions as to sentencing, before accepting White's plea and entering a judgment of guilty thereon.
After obtaining a presentence investigation report (PSI), the court held a sentencing hearing on August 3, 1982. As a preliminary matter, the parties stated their understanding that White did not intend ever to challenge the court's jurisdiction to accept his Alford plea. White and his counsel then detailed those aspects of the PSI which they disputed and asked the court not to consider for sentencing. Based on their statements, the court directed an amendment to the PSI and requested the preparation of addenda giving White's version of certain events. After additional opportunities to comment, White stated that the rest of the report was fair.
The court initially imposed the maximum sentence of ten years imprisonment and ordered a study pursuant to 18...
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