U.S. v. Bigeleisen

• Decision Date: 09 July 1980
• Docket Number: No. 79-2056,79-2056
• Parties: UNITED STATES of America, Appellee, v. Stanley Martin BIGELEISEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 203

625 F.2d 203

UNITED STATES of America, Appellee, v. Stanley Martin BIGELEISEN, Appellant.

No. 79-2056.

United States Court of Appeals Eighth Circuit.

Submitted April 18, 1980.

Decided July 9, 1980.

Richard M. Gale, Miami, Fla., for appellant.

Douglas A. Kelley, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Thomas K. Berg, U. S. Atty., Minneapolis, Minn., on brief.

Before McMILLIAN and ARNOLD, Circuit Judges, and WRIGHT, ^* District Judge.

ARNOLD, Circuit Judge.

Stanley Martin Bigeleisen was convicted by a jury on seven counts of distributing cocaine and one count of conspiracy. The District Court sentenced him to twelve years imprisonment on all counts (the sentences to run concurrently), a $20,000 fine, and a ten-year special parole term. Bigeleisen argues that reversal is required for three reasons: First, that the government permitted its key witness to testify falsely that he had no agreement with the government and expected nothing in return for his cooperation; second, that the government was allowed to argue, without evidentiary support, that another witness was under investigation by the Internal Revenue Service; and third, that there was insufficient evidence that the substances involved in three of the counts were cocaine. Because we agree with Bigeleisen on the first and second grounds, we reverse and remand for a new trial.

I.

The key government witness against Bigeleisen was John Paul Moore. Moore testified that he made several trips to Minnesota to deliver cocaine for Bigeleisen. During his own trial for these offenses, Moore changed his plea to guilty, and as a result of plea bargaining with the government, was sentenced to a prison term of three years. For some time he refused to implicate Bigeleisen. Moore testified that while he was in prison Bigeleisen agreed to give him $500 a month until Moore's wife could find work. Bigeleisen made one such payment, but when he failed to make another, Moore telephoned an Assistant United States Attorney and offered to cooperate. As a result of Moore's cooperation, Bigeleisen was indicted and brought to trial.

In return for Moore's cooperation, the government agreed to make his cooperation known to the sentencing judge and to the United States Parole Commission. The Assistant United States Attorney who represented the government before the Grand Jury and at Bigeleisen's trial, explained the agreement to the Grand Jury as follows:

Moore's deal with me was Moore called from North Dakota after he was put in jail and asked for help with the parole board and I said I would write a letter to the Judge for him or to the parole commission, whichever was the appropriate authority, if he cooperated with us and then I would, "make his cooperation known to the authorities." So, that's when Moore decided to cooperate and that was after he had been in jail for some time before he called up and said I would like to cooperate and what can you do for me.

We could never put the cocaine from Bigeleisen's hands to Moore's hands (without Moore's cooperation) because we didn't know what happened in Florida. He is in jail on a three year sentence and it was, as I told you before, Moore who called us and offered to cooperate if I would make his cooperation known to both the sentencing judge for the purposes of reduction of sentence and also to the parole commission.

Now, no specific dates were given. I didn't say to Moore I'm going to, you have one year and I will get the judge to reduce your sentence. The deal was his cooperation would be made known.

During the government's opening statement at the Bigeleisen trial, the following brief comment about the agreement was made:

John Moore refused to testify for the government until he got in jail in Florida. He called me and offered to testify sometime in June. He agreed to testify and the government would make known to the sentencing judge at the time whatever his cooperation is.

During the government's direct examination of Moore, however, Moore explained his reasons for testifying and denied that he was to receive anything in return for his cooperation:

Q. Mr. Moore, why did you call me?

A. I called you to let you know that I decided to cooperate with the government on this matter.

Q. Why did you decide to cooperate with the government?

A. Well, Mr. Bigeleisen had agreed to help my family out some and he didn't fulfill his agreement.

Q. Could you tell us, when you say he agreed to help your family out, during what time period are we talking about?

A. Well, when I first was incarcerated down in Miami he come to visit me and I told him that I would need $500 a month for two or three months until my wife got to where she could work and handle my bills, and he said it would be no problem.

Q. Did he ever make such a payment to you?

A. Yes, he made one.

Q. In what amount?

A. $500.

Q. Did he ever make another payment to you?

A. No, he did not.

Q. Did you have a conversation with him concerning the payment?

A. Yes, I did.

Q. When did this conversation take place?

A. Around the first part of June.

Q. How was it, telephone or person?

A. I called him and asked him if he had made the payment and he said, no, he didn't have the money right then, that he would make it in two or three days. I called him back again and he still didn't make the payment. So that's when I decided to cooperate with the government.

Q. Now, do you have an agreement with the government concerning your cooperation at this time?

A. No, I do not.

Q. By that I mean, is there anything that you are supposed to get in relation to testifying?

A. No, there is not. (Emphasis added.)

The government did nothing to correct Moore's false testimony, and he was not questioned about the existence of an agreement during cross-examination. During closing argument to the jury, moreover, the government made no effort to set the record straight. Instead, only a portion of the circumstances surrounding Moore's decision to cooperate was mentioned:

. . . Moore . . . said Bigeleisen was going to pay him the $500 per month to take care of his family. I suggest that is silence money paid by Bigeleisen to keep Moore's mouth shut because Moore had not agreed to cooperate with the Government at all up until this particular time. That was the worst $500 that Stanley Bigeleisen didn't spend because that is what opened Moore's mouth when he stopped the payments and Moore called me and said he decided to cooperate.

Agent Fossum and I are not ashamed of the plea bargains in this case. In every instance the Judge sentenced them for less than they were involved. You will recall that Eskandary, Gibbons and Munns, all had to agree to testify for the government.

At the time that Moore pled, his plea bargain didn't have anything to do with his testimony. That was Mr. Kogen's (Bigeleisen's trial lawyer) testimony. Moore at the time he pled did not have to testify.

Bigeleisen argues that he was denied a fair trial when the government failed to correct Moore's false testimony and then capitalized on it during closing argument. In these circumstances, has Bigeleisen been denied due process of law?

Our inquiry begins with Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The principal state witness in a murder prosecution, serving a 199-year sentence for the same murder, testified that he had received no promise of consideration in return for his testimony. In fact, he had been promised consideration, but the prosecutor did nothing to correct the testimony. The Supreme Court characterized the issue as whether "the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process . . . ." Id. at 265, 79 S.Ct. at 1175. In setting aside the conviction, the Court reasoned that a conviction obtained through false evidence must fall under the Fourteenth Amendment "when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. . . ." Id. at 269, 79 S.Ct. at 1177. It does not matter that the false testimony goes only to the witness's credibility. Concerning the jury's credibility determinations, the Court said:

The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence and it is upon such subtle factors as the possible interest of a witness in testifying falsely that a defendant's life or liberty may depend.

Ibid. The State argued further that since the jury was told of other grounds for believing that the witness might have an interest in testifying against the defendant, no prejudice occurred. The Court disagreed and said that this did not turn what was "a tainted trial into a fair one." Id. at 270, 79 S.Ct. at 1177.

In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the prosecution's key witness falsely testified that he had received no promise in return for his cooperation. The government's trial attorney had no knowledge of the promise that had been made. He did not correct the false testimony and in fact argued it in his summation. The Supreme Court reasoned that false testimony that goes uncorrected by the prosecution does not automatically require reversal, but a new trial is required if the "false testimony could . . . in any reasonable likelihood have affected the judgment of the jury . . . ." Id. at 154, 92 S.Ct. at 766, (quoting Napue, supra, 360 U.S. at 271, 79 S.Ct. at 1178). The Court reversed and remanded for a new trial, saying:

Here the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.

Id., 405 U.S. at 154-55, 92 S.Ct. at...