DeMarco v. U.S.
| Decision Date | 17 April 1991 |
| Docket Number | No. 90-5070,90-5070 |
| Citation | 928 F.2d 1074 |
| Parties | Joseph J. DeMARCO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John M. Weinberg, Miami, Fla., for petitioner-appellant.
Dexter W. Lehtinen, U.S. Atty., Linda Collins-Hertz, and Alice Ann Burns, Asst. U.S. Attys., Miami, Fla., Karen L. Atkinson, Asst. U.S. Atty., West Palm Beach, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and DYER, Senior Circuit Judge.
The issue in this appeal is whether the failure of the prosecutor to correct the perjured testimony of the government's essential witness, and her capitalizing on it in her closing argument, when defense counsel is also aware of the perjury and does not object to it, requires a new trial. The district court denied the defendant's motion under 28 U.S.C. Sec. 2255. We disagree and vacate the judgment of conviction.
DeMarco was found guilty of transporting in interstate commerce securities and moneys valued in excess of $5,000.00, knowing the same to have been stolen, converted, and taken by fraud, in violation of 18 U.S.C. Sec. 2314. He filed a motion to vacate the sentence imposed by the district court which the court considered as a motion under 28 U.S.C. Sec. 2255 and, after a hearing, the court denied the motion.
The material facts are not in dispute. An essential government witness against DeMarco was Eli Vance. The theory of the defense was that the real culprit was Vance. Defense counsel told the jury in his opening statement that the evidence would reveal that Vance had made "other statements at other times" and that he "may be testifying because he has made a deal." The government concedes that it had made a deal with Vance who had previously been convicted. In its discovery letter furnished by the government to defense counsel more than two years prior to trial of this case, the letter stated in pertinent part:
One of the government witnesses, Mr. Vance was convicted in the original case (83-8001 CR-J.C.P.). Mr. Vance has been told that whatever cooperation he renders the government will be known to the court at any time he may file a motion for reduction of sentence. Additionally, Mr. Vance has been told that he would not be prosecuted for any false statements made during the original trial.
After Vance testified for the government at the trial of another defendant, the government assisted him at his sentencing, resulting in a reduction of sentence. It further made his cooperation known to the Parole Commission which then advanced his presumptive parole date.
All of this, except for the advancement of his parole date, occurred prior to DeMarco's trial, at which Vance testified on cross-examination that he had never been promised anything, had not received anything, and did not expect to receive anything. The government knew that those were prevarications but did nothing to intervene. Neither did defense counsel object although he knew that Vance was giving false testimony, because counsel was in possession of the discovery letter. In her jury argument the prosecutor adopted and emphasized Vance's perjured testimony.
The district court found that since defendant's counsel knew of the perjury and did nothing about it, DeMarco's Section 2255 motion should be denied.
In Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 765, 31 L.Ed.2d 104 (1972), the Supreme Court said, " This rationale extends to impeachment evidence. United States v. Cole, 755 F.2d 748, 763 (11th Cir.1985). Thus, "[t]he thrust of Giglio and its progeny has been to ensure that the jury knows the facts that might motivate a witness in giving testimony ..." Brown v. Wainright, 785 F.2d 1457, 1465 (11th Cir.1986).
While the prosecutor concedes that she should have asked for a bench conference to note the existence of the Vance agreement, the government insists that its failure to correct the false evidence should be excused because defense counsel had been given the discovery letter informing him of the prosecutor's promises made to Vance and was therefore in a position to correct the false evidence by asking specific questions on cross-examination and by introducing the letter into evidence. To support its position it relies on United States v. Iverson, 648 F.2d 737 (D.C.Cir.1981); accord Ross v. Heyne, 638 F.2d 979 (7th Cir.1980), and United States v. Meinster, 619 F.2d 1041 (4th Cir.1980) holding that there is no violation of due process resulting from prosecutorial non-disclosure of false testimony if defense counsel is aware of it and fails to object. The government also submits that the principle of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) was not violated because there was no suppression by the government of evidence favorable to DeMarco since his counsel had knowledge of the perjury.
Distinguishing this case from those relied upon by the government is the added important factor that in the prosecutor's summation to the jury, she not only adopted Vance's perjured testimony, but capitalized on it.
In a strikingly similar case, United States v. Sanfilippo, 564 F.2d 176 (5th Cir.1977), the government advised defendant's counsel by letter weeks prior to trial that one Mori would be a government witness in return for which he would not be prosecuted in the Ellswick case; that the government would make his cooperation known to the judge at the time of Mori's sentencing; and that he would not be filed against as a second offender. On cross-examination defense counsel futilely attempted to elicit the terms of the prosecutor's promise not to prosecute Mori in the Ellswick case. The prosecutor knew that Mori's testimony regarding...
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