Lindhorst v. U.S.
| Decision Date | 09 September 1981 |
| Docket Number | No. 80-1883,80-1883 |
| Citation | 658 F.2d 598 |
| Parties | Richard Bernard LINDHORST, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jack S. Nordby (appointed by the court), Minneapolis, Minn., for appellant.
Roxanne Barton Conlin, U. S. Atty., Terry Wright, Asst. U. S. Atty., argued, Des Moines, Iowa, for appellee.
Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and LARSON, * Senior District Judge.
Richard Bernard Lindhorst, Jr., appeals from the district court's 1 denial of his 28 U.S.C. § 2255 motion to vacate sentence following an evidentiary hearing. For reversal appellant argues the district court erred in denying him a new trial on the grounds of (1) the government's knowing use of the perjured testimony of the DeSherlia brothers, (2) newly discovered evidence that two government witnesses committed perjury, (3) ineffective assistance of counsel, 2 (4) nondisclosure of Brady materials, and (5) incompetence to stand trial. For the reasons discussed below, we affirm the judgment of the district court.
The following statement of facts is taken from the prior appellate opinion, Lindhorst v. United States, 585 F.2d 361, 363-64 (8th Cir. 1978) (footnotes omitted):
Appellant was indicted for the December 20, 1974, robbery of the Farmers Savings Bank in Wever, Iowa. Mr. Clark Holmes was appointed counsel for appellant. On appellant's motion prior to trial, the district court ordered a psychiatric examination of appellant, the results of which led the court to find appellant competent to stand trial. On the day set for jury selection, November 3, 1975, appellant moved to dismiss Mr. Holmes as counsel on the ground that he had not adequately prepared for trial. The district court and prosecution persuaded appellant to proceed with Mr. Holmes as counsel.
At the trial, the only two prosecution witnesses who could positively identify appellant with the crime were Thomas and James DeSherlia, appellant's brothers-in-law, who allegedly participated in the robbery with appellant. In return for Thomas DeSherlia's testimony, the United States Attorney's office promised to drop bank robbery charges against him, to assist him in securing a transfer from the Florida State Penitentiary, and to recommend against imposition of the death penalty in an Alabama murder trial. In return for James DeSherlia's testimony, the government agreed to drop bank robbery charges against him and to recommend dismissal of a first degree murder charge in the Alabama murder case. The terms of the agreements were disclosed to Mr. Holmes and the court (in chambers) and stipulations briefly describing the agreements were read to the jury. (Appellant was not present in chambers during the discussion about the government's agreements with the DeSherlia brothers.)
Appellant was convicted by a jury of bank robbery in violation of 18 U.S.C. § 2113(d) and sentenced to twenty years imprisonment. The conviction was affirmed on direct appeal. Lindhorst v. United States No. 75-1928 (8th Cir. May 13, 1976). Appellant then filed a pro se 28 U.S.C. § 2255 motion to vacate sentence, alleging the same grounds presented in this appeal with the exception of the Brady materials claim. 3 The district court summarily dismissed the motion. We reversed and remanded for an evidentiary hearing on all the issues. Lindhorst v. United States, supra, 585 F.2d at 365-66. On remand the district court permitted appellant to amend his motion, held an evidentiary hearing, and, after thoroughly addressing appellant's claims in a lengthy memorandum opinion, denied the motion. Lindhorst v. United States, No. Civil 76-376-2 (S.D.Iowa Sept. 10, 1980) (order). This appeal followed.
Appellant argues that the district court erred in refusing to grant a new trial on the ground that the government knowingly used perjured testimony. This allegation rests largely upon the sworn affidavits and testimony at the evidentiary hearing of Thomas and James DeSherlia. The DeSherlias testified that they falsely accused appellant of participating in the bank robbery because of threats and promises made by the government in exchange for their testimony.
"The law is quite clear that 'in order to vacate the judgment and sentence on such grounds, two elements must be established: first, the use of perjured testimony, and second, knowledge by the prosecuting officials at the time the testimony was used that it was perjured.' " United States v. Conzemius, 611 F.2d 695, 697 (8th Cir. 1979) (emphasis omitted), citing Holt v. United States, 303 F.2d 791, 794 (8th Cir. 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963). Here, the district court found that neither appellant's testimony nor that of his other witnesses established that the government's attorney or any member of the prosecution team knew at the time of trial that the DeSherlia brothers were lying. Lindhorst v. United States, supra, No. Civil 76-376-2 (slip op. at 7). Both DeSherlia brothers testified at the evidentiary hearing that they had not told the government's attorney or Mr. Holmes that they lied at the trial. 4 The then government's attorney and Mr. Holmes testified at the evidentiary hearing that they did not know at the time of trial that the DeSherlias were not telling the truth.
Thus, assuming for the purposes of argument that the DeSherlia brothers in fact committed perjury, the district court did not err in dismissing this claim because appellant failed to establish the government's knowing use of the perjured testimony.
Appellant next argues that the district court erred in refusing to grant him a new trial on the ground of newly discovered evidence, that is, the allegation that the DeSherlia brothers, the two chief government witnesses, committed perjury in identifying appellant as the third bank robber. Appellant emphasizes that the DeSherlia brothers were the only witnesses who positively identified appellant as one of the bank robbers; the other government witnesses, including several bank employees, were unable to make positive identifications.
"When newly discovered evidence is the ground for a § 2255 motion, the district court should apply the same substantive test which governs a motion for a new trial under Fed.R.Crim.P. 33 premised upon the same ground." Lindhorst v. United States, supra, 585 F.2d at 365 n.8, citing Everitt v. United States, 353 F.2d 532 (5th Cir. 1965).
There are five prerequisites which must ordinarily be met to justify the grant of a new trial on the ground of newly discovered evidence: "(1) the evidence must be in fact newly discovered, that is, discovered since the trial; (2) facts must be alleged from which the court may infer diligence on the part of the movant; (3) the evidence relied upon must not be merely cumulative or impeaching; (4) it must be material to the issues involved, and (5) it must be of such nature that, on a new trial, the newly discovered evidence would probably produce an acquittal."
United States v. McColgin, 535 F.2d 471, 476 (8th Cir.), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 128 (1976), citing United States v. Pope, 415 F.2d 685, 691 (8th Cir. 1969), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 132 (1970). However, as noted in United States v. Runge, 593 F.2d 66, 73 (8th Cir.), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979), we must modify this test when the newly discovered evidence involves a claim of perjury on the part of prosecution witnesses.
Unlike the stricter standard of materiality used in new trial motions based on discovery of new evidence or failure of the prosecution to disclose favorable evidence, knowing use of perjured testimony requires that a conviction be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Where the use of known perjury involves prosecutorial misconduct, it constitutes "corruption of the truth-seeking function of the trial process." The government may be responsible even if the prosecutor did not actually know the testimony was perjured, but should have known, or if he or she did not elicit false testimony, but allowed it to go uncorrected when it appeared. Even false testimony which merely impeaches a witness' credibility may require a new trial.
Id. (citations omitted); see United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 2397-98, 49 L.Ed.2d 342 (1976); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959).
As found by the district court, there is little question that the evidence was newly discovered, that appellant was diligent, that the evidence was material to the issue of appellant's participation in the bank robbery, or that there was a reasonable likelihood that the allegedly perjured testimony could have affected the judgment of the jury. Lindhorst v. United States, supra, No. Civil 76-376-2 (slip op. at 10). It is, however, the government's knowing use of perjured testimony which is fundamentally unfair. See United States v. Agurs, supra, 427 U.S. at 103, 96 S.Ct. at 2397; United States v. Conzemius, supra, 611 F.2d at 697. Here, the district court found, after an evidentiary hearing, that appellant failed to establish two facts essential to his allegation of newly discovered evidence: that the DeSherlia brothers in fact committed perjury 5 or that the government knew or should have known that they were lying. These factual findings are not clearly erroneous. Under these circumstances appellant failed to establish any basis for relief; the district court did not err in dismissing appellant's claim.
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