Akrawi v. Booker

• Decision Date: 10 July 2009
• Docket Number: No. 07-1984.,07-1984.
• Citation: 572 F.3d 252
• Parties: Ragheed AKRAWI, Petitioner-Appellant, v. Raymond BOOKER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

572 F.3d 252

Ragheed AKRAWI, Petitioner-Appellant, v. Raymond BOOKER, Respondent-Appellee.

No. 07-1984.

United States Court of Appeals, Sixth Circuit.

Argued: June 17, 2009.

Decided and Filed: July 10, 2009.

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.

Before: GILMAN and McKEAGUE, Circuit Judges; GRAHAM, District Judge.^*

OPINION

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, in violation of its duties under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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. 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 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.

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.

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...