Reed v. U.S.
| Decision Date | 05 February 1997 |
| Docket Number | No. 96-1185,96-1185 |
| Citation | 106 F.3d 231 |
| Parties | Glen REED, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Walter Craig Lambert, argued, Little Rock, AR, for appellant.
Matthew W. Fleming, argued, Fort Smith, AR, for appellee.
Before McMILLIAN, LAY and MORRIS SHEPPARD ARNOLD, Circuit Judges.
Glen Reed, a federal inmate, appeals from a final order entered in the United States District Court 1 for the Western District of Arkansas, adopting the report and recommendation of the magistrate judge 2 and denying Reed's petition for post-conviction relief pursuant to 28 U.S.C. § 2255. United States v. Reed, Civil No. 95-5061 (W.D.Ark. Nov. 17, 1995) (order). For reversal, Reed argues that the district court erred in holding (1) his due process and confrontation rights were not violated by the government's failure to disclose that a key witness had been granted immunity in exchange for testifying against him and (2) his Sixth Amendment right to effective assistance of trial
counsel was not violated. For the reasons discussed below, we affirm the order of the district court.
On November 4, 1993, Reed, a former accountant in Fayetteville, Arkansas, and Ezra "Scotty" Maglothin, Jr., a former attorney, were indicted in federal court as co-defendants on three counts of mail fraud in violation of 18 U.S.C. § 1341, one count of aiding and abetting mail fraud in violation of 18 U.S.C. § 2, and one count of theft of government property in violation of 18 U.S.C. § 541. These charges against Reed and Maglothin stemmed from an alleged scheme to steal money from Maglothin's clients by fraudulently converting, for their own use, client money deposited in a trust account maintained by Maglothin at a Fayetteville bank.
On December 7, 1993, Maglothin filed a motion to sever the trial, which the district court granted. Maglothin, at his own trial, testified that Reed stole money from the clients without authorization. He denied having any fraudulent intent in his actions involving bank statements and other correspondence. On March 2, 1994, Maglothin was acquitted on all counts. On March 3, 1994, Reed's trial began, and Maglothin was subpoenaed by the prosecution to testify during Reed's trial. Maglothin again denied any criminal wrongdoing, testifying that his intent was to protect and invest the clients' money rather than to defraud the clients.
On March 7, 1994, the jury convicted Reed on three counts of mail fraud and a fourth count of theft of government property. Reed's theft of government property conviction was set aside on a motion for judgment of acquittal. United States v. Reed, 851 F.Supp. 1296, 1309-12 (W.D.Ark.1994). The district court sentenced Reed to 24 months imprisonment, two years supervised release, and restitution in the amount of $193,301.29. On appeal, Reed argued the evidence was insufficient to prove mail fraud, but this court disagreed and affirmed his convictions on those three counts. Id., 47 F.3d 288 (8th Cir.1995).
After Maglothin's and Reed's federal trials, the State of Arkansas charged Maglothin with theft of property. Maglothin moved to dismiss the state charges on the ground that he had been granted "use immunity" for his testimony during Reed's trial. Jim Rose, Maglothin's attorney throughout the federal trial and subsequent proceedings, testified as a witness at a pretrial hearing that, prior to Reed's trial, Rose discussed immunity for Maglothin with P.K. Holmes, the U.S. Attorney who prosecuted Reed's case, and that Holmes had orally agreed to grant Maglothin use immunity. Holmes testified that he first became aware of the use immunity issue after Maglothin filed the motion to dismiss the criminal charges in state court. Holmes testified that he distinctly remembered rejecting Rose's request for full immunity for Maglothin the day before Reed's trial began, and he did not recall telling Rose he would grant Maglothin use immunity. However, Holmes qualified his testimony by stating that Rose was known to him as a trustworthy and honorable person and, even though he (Holmes) had no recollection of granting use immunity, "[t]hat doesn't mean I didn't say it." Holmes testified that he never intended to offer any kind of immunity because he had no intention of further prosecuting Maglothin. Holmes also testified that he was never asked to put any immunity agreement in writing or on the record.
The state trial court found that there was no proof of any immunity agreement between Maglothin and the government, and thus, no immunity existed; accordingly, the state trial court denied Maglothin's motion to dismiss the charges against him. State v. Maglothin, No. CR 94-443 (Ark. Cir. Ct. Washington County Sept. 16, 1994). Maglothin was convicted in state court on four counts of theft of property and sentenced to twelve years imprisonment. On appeal, the Arkansas Court of Appeals affirmed. Maglothin v. State, 54 Ark.App. 146, 924 S.W.2d 468 (1996).
Prior to Reed's criminal trial, Reed's trial attorney requested that Maglothin send him copies of each and every check which Maglothin claimed Reed wrote without Maglothin's authority. Maglothin sent copies to Reed's attorney, via facsimile transmission, of six checks totaling $1,270.00. At Reed's trial, Maglothin testified that Reed allegedly took a much larger amount of money without authorization. Maglothin was not questioned about the facsimile transmitted checks, but the copies of the checks which Maglothin sent to Reed's attorney were admitted into evidence during Reed's testimony that he had specifically asked Maglothin to designate any unauthorized checks. The government objected to such testimony, but the district court found it admissible to impeach Maglothin's testimony and overruled the government's objection.
At the § 2255 hearing, Maglothin testified that the facsimile copies of the checks were not inclusive but only examples of numerous unauthorized checks. Reed's trial attorney testified that he did not cross-examine Maglothin about the six checks because acknowledging that those checks were unauthorized would have been inconsistent with Reed's theory of defense that he had done nothing wrong and that Maglothin had authorized him to write the checks.
The magistrate judge found that Reed's trial counsel had not been ineffective. The magistrate judge found that the facsimile transmissions of the checks and related conversations were admitted into evidence during Reed's testimony and that additional cross-examination of Maglothin would not have changed the outcome of the trial. Id.
Reviewing the case de novo, the district court adopted the findings and recommendations of the magistrate judge and denied Reed's § 2255 petition. This appeal followed.
In § 2255 proceedings, this court reviews a district court's conclusions of law de novo. United States v. Duke, 50 F.3d 571, 576 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 224, 133 L.Ed.2d 154 (1995). Reed argues that the government's failure to disclose the grant of use immunity to Maglothin The government argues that there was no failure to disclose the grant of use immunity because no use immunity agreement existed. We agree. Under 18 U.S.C. §§ 6002 and 6003, a U.S. Attorney may request a court order compelling testimony necessary to the public interest when an individual invokes the privilege against self-incrimination, and the compelled testimony or information directly or indirectly derived from the testimony may not be used against the witness in any criminal case except for a prosecution for perjury. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Statutory use immunity can only be granted upon request of the Attorney General. United States v. Robaina, 39 F.3d 858, 863 (8th Cir.1994). We agree with the district court that Maglothin was not granted use immunity. First, there was no evidence that the U.S. Attorney at any time sought an application for use immunity pursuant to 18 U.S.C. §§ 6002 and 6003. Second, the U.S. Attorney did not orally agree to grant use immunity to Maglothin. Moreover, the government had no reason to assume that Maglothin believed he had been granted statutory immunity.
violated his right to due process. Reed argues that the district court erred in concluding that the...To continue reading
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