U.S. v. Auten
Decision Date | 08 December 1980 |
Docket Number | No. 80-1269,80-1269 |
Citation | 632 F.2d 478 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles Jay AUTEN, Defendant-Appellant. Summary Calendar. . Unit A |
Court | U.S. Court of Appeals — Fifth Circuit |
Alfred J. Weisberg, Denison, Tex., for defendant-appellant.
Christian Harrison, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before BROWN, POLITZ and TATE, Circuit Judges.
Charles Jay Auten's 1977 conviction of conspiracy to negotiate stolen money orders was affirmed on direct appeal, United States v. Auten, 570 F.2d 1284 (5th Cir. 1978). He now appeals the denial of his petition for habeas corpus relief under 28 U.S.C. § 2255, and the denial of his motions for additional discovery and for an evidentiary hearing. We reverse and remand.
Auten and six others were indicted for conspiring to pass stolen money orders in violation of 18 U.S.C. § 371. Four of the others were also charged with substantive counts. Auten, tried alone, was confronted with the testimony of several of his co-conspirators. One of the government's key witnesses, an unindicted co-conspirator named Michael Roy Taylor, was granted immunity immediately before the trial. The testimony of Taylor and that of Taylor's girlfriend, Cynthia Myers, are at the center of Auten's attack on his conviction. 1
Auten assigns four grounds for the relief sought: (1) the prosecution knowingly offered the perjured testimony of two co-conspirators, (2) the prosecution failed to disclose that one of its witnesses had signed the front of some of the money orders involved, (3) the prosecution failed to disclose that one of its key witnesses had been convicted more than one time, and (4) he had ineffective appointed counsel.
We find no merit in the first two contentions. Auten does not point to any evidence, nor do we find any in the record, to support his allegation that the government knowingly used perjured testimony of Taylor and Myers pertaining to Auten's involvement in the conspiracy. Nor do we find support for the assertion that Taylor signed the money orders and that the government withheld this information. Auten's conclusory assertions do not support the request for an evidentiary hearing. United States v. Jones, 614 F.2d 80 (5th Cir. 1980).
The third challenge has merit and compels closer scrutiny. Auten asserts that the government's failure to disclose the criminal record of Taylor constituted a denial of due process and is contrary to the directives of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. At trial Taylor admitted that in 1971 he was convicted of forgery and served one year in jail followed by two years on probation. He denied any other convictions. Auten attached two documents to his motion for discovery indicating two other possible convictions of Taylor. The first instrument, entitled "Conditions of Probation," emanates from the Third Judicial District Court, Las Animas County, Colorado. Dated March 23, 1976, it is addressed to Michael Roy Taylor in pleadings entitled "The People of the State of Colorado vs. Michael Roy Taylor." It bears the signature "Michael Taylor" and by its terms provides for a three year probation period expiring on March 23, 1979. The second instrument, dated February 26, 1976, is entitled "Waiver of Extradition Proceedings" and reflects that one Mike Taylor was charged in Bonham, Texas with armed robbery. The instrument reflects that Mike Taylor appeared before the court in Las Animas County, Colorado and agreed to extradition to Texas. A cursory, untutored examination of the signatures on the two instruments strongly suggests that the same person signed both.
The government denies any knowledge that Michael Roy Taylor had more than the one conviction he admitted at Auten's trial in September 1977. In its responsive pleading the government advises that the decision to use Taylor as a witness was made the night before the trial, no background report by the Federal Bureau of Investigation was made, nor was an inquiry directed to the National Crime Information Center. Taylor confessed his complicity in the pending criminal proceeding, was granted immunity the next morning, and testified shortly thereafter.
A valid Brady complaint contains three elements: (1) the prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Monroe v. Blackburn, 607 F.2d 148 (5th Cir. 1979); United States v. Anderson, 574 F.2d 1347 (5th Cir. 1978). The prosecution challenges the first element, insisting that it could not withhold or suppress evidence unknown to it. That the prosecutor, because of the shortness of time, chose not to run an FBI or NCIC check on the witness, does not change "known" information into "unknown" information within the context of the disclosure requirements. As we observed in our en banc decision in Calley v. Callaway, 519 F.2d 184, 223 (5th Cir. 1975):
The basic import of Brady is ... that there is an obligation on the part of the prosecution to produce certain evidence actually or constructively in its possession or accessible to it in the interests of inherent fairness.
And again at 224:
The leading articles on enhanced criminal discovery emphasize what we stress here, that Brady and other means of criminal discovery indicate the need for disclosure of important information known or available to the prosecutor in order to promote the fair administration of justice.
The need referred to in Calley is premised on the fact that the prosecutor has ready access to a veritable storehouse of relevant facts and, within the ambit of constitutional, statutory and jurisprudential directives, this access must be shared "in the interests of inherent fairness ... to promote the fair administration of justice." See also Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). If disclosure were excused in instances where the prosecution has not sought out information readily available to it, we would be inviting and placing a premium on conduct unworthy of representatives of the United States Government. This we decline to do.
The argument proffered by the government is not new. In United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973), the prosecution contended that it was not in possession of the information requested by the defendant. 2 The information sought was in the files of the United States Postal Service. We noted that the prosecution was not denying that it had access, it merely denied present possession "without even an attempt to remedy the deficiency." Id. at 57. Finding no suggestion in Brady that different arms of the government are such separate entities as to be insulated one from the other, we remanded Deutsch for an examination of the information involved after concluding that the prosecutor was, for disclosure purposes, in possession of the subject information. See United States v. Trevino, 556 F.2d 1265 (5th Cir. 1977). Recently in United States v. Antone, 603 F.2d 566, 569 (5th Cir. 1979), we cited Deutsch as authority for the declaration that we decline "to draw a distinction between different agencies under the same government, focusing instead upon the 'prosecution team' which includes both investigative and prosecutorial personnel."
We conclude that the government did have knowledge, for purposes of the disclosure requirements, of the criminal record, whatever it may be, of the Michael Roy Taylor it called as a witness, and that it withheld or suppressed the available information. In reaching this conclusion we do not assign bad motive or bad faith to the prosecution. We do underscore, however, the heavy burden of the prosecutor to be even-handed and fair in all criminal proceedings.
The second Brady element requires that the evidence be favorable to the defendant. The alleged criminal record of Michael Roy Taylor would have been of value in impeaching his credibility, particularly in light of his specific denial of any other conviction. Brady requires disclosure of evidence favorable to the accused on the issue of guilt as well as evidence which serves to impeach the testimony of adverse witnesses. United States v. Gaston, 608 F.2d 607 (5th Cir. 1979); United States v. Anderson, supra ; Williams v. Dutton, 400 F.2d 797 (5th...
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