Abbott v. USA., 99-1069

• Decision Date: 29 October 1999
• Docket Number: No. 99-1069,99-1069
• Citation: 195 F.3d 946
• Parties: (7th Cir. 1999) Frank Edward Abbott, Petitioner-Appellant, v. United States of America, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 946

195 F.3d 946 (7th Cir. 1999)

Frank Edward Abbott, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 99-1069

United States Court of Appeals, Seventh Circuit

Argued October 6, 1999

Decided October 29, 1999

Appeal from the United States District Court for the Central District of Illinois. No. 98-CV-2112--Harold A. Baker, Judge.

Before Eschbach, Flaum, and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Frank Edward Abbott appeals the denial of his 28 U.S.C. sec. 2255 motion, in which Abbott claimed that he was denied a fair trial in violation of his due process rights when the government failed to disclose that two of its key witnesses received promises of leniency in exchange for testifying against Abbott. After conducting an evidentiary hearing, the district court concluded that Abbott had failed to demonstrate the existence of any undisclosed agreements. We affirm.

Abbott became the subject of a federal investigation after Michael Jenkins revealed to authorities that Abbott was dealing in methamphetamine and marijuana. When Jenkins provided this information to authorities, he was on probation from a 1992 state conviction for aggravated bat tery. On December 21, 1992, authorities sent Jenkins to Abbott's residence to buy drugs. Others including Frank Strong were present at Abbott's residence while Jenkins was there purchasing methamphetamine. The next day, ATF Agent Paul Vido obtained a search warrant for Abbott's residence and, during the search, uncovered drug records, drug paraphernalia, cash, methamphetamine and marijuana, a scale, and a holstered pistol and ammunition.

Abbott was charged with possession with intent to distribute methamphetamine and marijuana, 21 U.S.C. sec. 841(a)(1) (Counts 1 and 2); possession of a firearm by a convicted felon, 18 U.S.C. sec. 922(g)(1) (Count 3); and use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. sec. 924(c) (Count 4). In presenting its case to the jury, the prosecution called Jenkins and Strong. Jenkins testified about his drug dealings with Abbott and stated that he had a felony conviction for burglary and was at that time incarcerated for a probation violation. Jenkins testified that he had no deals with the prosecution. Strong testified that he was also then in state custody on charges of possession of a weapon by a felon and burglary. Strong identified the pistol seized during the search of Abbott's residence as the one he stole in the burglary and later sold to Abbott. Like Jenkins, Strong denied having any deals with the prosecution. The prosecutor emphasized at various points in his closing argument that the testimony of Strong, in particular, was believable, since he voluntarily testified without any deal from the government.

Abbott was convicted on all counts and sentenced to concurrent terms of 262 months on Counts 1 and 3, a concurrent term of 60 months on Count 2, and a consecutive term of 60 months on Count 4, resulting in a total term of 322 months. After we vacated Abbott's sentences on direct appeal, see United States v. Abbott, 30 F.3d 71 (7th Cir. 1994), the district court resentenced Abbott to concurrent terms of 210 months on Counts 1 and 3, with Counts 2 and 4 remaining unchanged, resulting in a total term of 270 months. In Abbott's next appeal, see United States v. Abbott, 1996 WL 628245 (7th Cir. Oct. 28, 1996) (unpublished), we reversed the sec. 924(c) conviction based on Bailey v. United States, 516 U.S. 137 (1995), and on remand the district court reimposed the 210-month total term of imprisonment as to Counts 1, 2, and 3. Abbott appealed yet again, and this time we affirmed the district court's denial of Abbott's request for a downward departure based on postoffense rehabilitative efforts. See United States v. Abbott, 1997 WL 659826 (7th Cir. Oct. 9, 1997) (unpublished).

In May 1998, Abbott filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. sec. 2255, claiming that AUSA Lawrence Beaumont had failed to disclose deals struck with prosecution witnesses Jenkins and Strong, in violation of Giglio v. United States, 405 U.S. 150 (1972). Abbott further alleged that AUSA Beaumont knowingly permitted Strong to commit perjury when he testified at Abbott's trial that he had no agreements with the prosecution. The district court conducted an evidentiary hearing on November 6, 1998. Strong, Jenkins, ATF Agent Vido, Coles County Public Defender Lonnie Lutz, Abbott's father, AUSA Beaumont, and Coles County State's Attorney Steve Ferguson all testified. After considering the testimony and exhibits, the district court concluded that Abbott had failed to demonstrate the existence of any agreements between AUSA Beaumont and the witnesses. The district court accordingly denied Abbott sec. 2255 relief.

In his sec. 2255 motion, Abbott claimed that the government improperly withheld information concerning promises made to witnesses Strong and Jenkins in exchange for their testimony against Abbott. The substantive principles underlying Abbott's claim were first announced in Brady v. Maryland, 373 U.S. 83 (1963), where the Supreme Court established that the prosecution violates due process by "suppressing favorable evidence that is material either to the guilt or punishment of the accused, 'irrespective of the good faith or bad faith of the prosecution.'" United States v. Gonzalez, 93 F.3d 311, 315 (7th Cir. 1996) (quoting Brady, 373 U.S. at 87). The Supreme Court subsequently extended Brady in Giglio v. United States, 405 U.S. 150 (1972), by holding that the prosecution violates due process by suppressing impeachment evidence when such evidence would be material to guilt or innocence. See id. at 154. To have succeeded on his Giglio claim, Abbott was required to establish that (1) the prosecutor suppressed evidence, (2) such evidence was favorable to the defense, and (3) the suppressed evidence was material. See United States v. Earnest, 129 F.3d 906, 910 (7th Cir. 1997). At issue here are the factual and credibility determinations made by the district court in concluding that Abbott failed to establish a Giglio violation. In assessing the district court's denial of Abbott's sec. 2255 motion, we review factual findings for clear error and conclusions of law de novo. Arango- Alvarez v. United States, 134 F.3d 888, 890 (7th Cir. 1998).

Before addressing Abbott's Giglio claim, we note that Abbott appears to misunderstand the nature of our inquiry on appeal. Rather than challenging the district court's ultimate conclusion that...