U.S. v. Burroughs, 86-3566
| Decision Date | 03 November 1987 |
| Docket Number | No. 86-3566,86-3566 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alphonso Galloway BURROUGHS, Clifton Weldon Rogers, a/k/a "Shotgun," a/k/a "Chief," Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
M. Alan Ceballos, Asst. U.S. Atty., Jacksonville, Fla., for U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before TJOFLAT and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.
Clifton Weldon Rogers, Alphonso Galloway Burroughs, and Miles Jasper Rimes were indicted on April 9, 1986 in the Middle District of Florida. Count I charged them with conspiracy from early 1980 through January 1984 to possess heroin with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Counts II through VIII charged various combinations of the trio with possession of heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. With one exception, the jury found the defendants guilty of all counts as charged. 1 The court sentenced Rogers to three 15 year terms to be served consecutively. Burroughs received two 15 year terms to be served consecutively to be followed by a special parole term of 10 years. The court sentenced Rimes to five concurrent five-year terms and a special parole term of five years. Rogers appeals, claiming that the evidence was insufficient to support and establish venue in the Middle District of Florida for all counts attributable to him. Burroughs appeals, and along with Rogers, challenges the district court's refusal to grant a mistrial and a new trial because of the government's failure to disclose to the defense information concerning a grant of immunity from prosecution given the wife of a government witness. Rimes does not appeal. 2
For a number of years Rogers lived, worked, and sold heroin out of New York. Various couriers transported the drugs from Rogers' location to Jacksonville, Florida for Burroughs and his colleague, Bobby Roy Dennis. 3 The couriers testified as to numerous trips to New York beginning in 1980, with Dennis himself stating that he traveled on one occasion to purchase heroin from Rogers. At times, Burroughs permitted Dennis to acquire heroin from him on credit and to repay the debts from profits of the Jacksonville street sales. Dennis understood that Burroughs had a similar arrangement with Rogers. At other times, Burroughs and Dennis pooled their money in order to acquire heroin.
Prior to trial, Rogers and Burroughs filed motions for discovery. In particular, Rogers' motion requested:
The details of all threats, promises, assurances, understandings, or agreements, formal or informal, made by the prosecution, its representatives, or any other Government authority directly or indirectly to any witness or his counsel which could be considered by the witness as an inducement to cooperate with the Government. This request includes The magistrate granted the request to the extent required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In response to the magistrate's order, the government told the defense that Dennis had been accepted in the prisoner protection program and that his wife had received $600 to enable her to visit him at the federal prison in Memphis, Tennessee.
threats, promises, assurances, understandings or agreements made in connection with other cases or investigations. 4
Dennis testified against all three defendants at trial. During redirect examination, the following colloquy occurred:
MR. CEBALLOS (United States Attorney)
Q. What was the reason that you did decide to become a witness?
A. The reason why I decided to become a witness is because my wife had got into some trouble and she came down here and I felt like the government gave her a fair shake.
Q. She got in some trouble with the Federal authorities?
A. Yes.
Q. Did you feel like you were testifying to keep your wife from getting in trouble?
A. No, because whatever, she had already gotten the break she was going to get. It was all over at the time but actually she was the one that talked me into it.
On recross-examination, Dennis was asked about the nature of his wife's troubles with the government. After he refused to answer, the government proffered at a sidebar conference evidence that Mrs. Dennis had testified falsely before a grand jury investigating an unrelated narcotics dealing and that the government had agreed not to prosecute her. The defense moved for a mistrial, arguing that the immunity deal for Dennis' wife was an inducement for Dennis to testify within the scope of Brady. The district court disagreed with the characterization of the information as Brady material and denied the motion. The court, however, offered to "accept [requests] from counsel" for more time to gather information concerning Mrs. Dennis' deal. Instead of accepting the court's invitation, the defense continued the questioning of Dennis, asking him about the grant of immunity to his wife.
After testifying, Dennis was returned to his jail cell. The next day he purportedly wrote a letter to Burroughs' sister apologizing for testifying against Burroughs. In the letter Dennis wrote:
I didn't want to testify against [Burroughs].... [But m]y wife got in trouble ... and she was going to go to the penitentiary and they were going to take my kids and put them in a home.... I couldn't let her go to jail if there [was any way] that I could prevent it.
Appellants Rogers and Burroughs claim that the government withheld two material pieces of information: the "fair shake" (immunity from prosecution) given to Dennis' wife in the separate investigation, and the "threat" of government officials "to take [Dennis'] kids and put them in a [state] home." They contend that this information constituted "agreements" and "threats" used to induce Dennis to cooperate with the government as demanded in the discovery request, and that the information was material and favorable to the defense under Brady v. Maryland, supra.
Brady held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196-97. To establish a Brady violation a defendant must show (1) that the prosecution suppressed evidence, (2) that the evidence suppressed was favorable to the defendant or exculpatory, and (3) that the evidence suppressed was material to the issues at trial. United States v. Severdija, 790 F.2d 1556, 1558 (11th Cir.1986). "Materiality" requires a finding that, had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. A "reasonable probability" is one "sufficient to undermine confidence" in the result. See id. ( United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court considered the non-disclosure of evidence affecting credibility. It noted:
When the "reliability of a given witness may well be determinative of guilt or innocence," non-disclosure of evidence affecting credibility falls within this general rule. We do not, however, automatically require a new trial whenever "a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict...." A finding of materiality of the evidence is required under Brady. A new trial is required if "the false testimony could ... in any reasonable likelihood have affected the judgment of the jury...."
....
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. at 154-55, 92 S.Ct. at 766 (citations omitted).
Appellants seek to apply Giglio here by arguing that Dennis was the government's star witness. Because of Dennis' importance to the prosecution's case, his credibility was the "critical issue before the jury at trial." According to appellants, both pieces of withheld information affected that credibility: the "fair shake" given his wife constituted his primary motivation for testifying for the government, and the information contained in the letter (that the government had "threatened" to take his children away from his wife) contradicted that assertion. Under Giglio, appellants argue, the jury was entitled to know of the information.
The government responds by considering separately the two pieces of evidence. It argues that the "fair shake" information was heard by the jury, foreclosing any speculation regarding the effect of the earlier non-disclosure on the verdict. The government also asserts that the information was not material under Brady. With respect to the "threat" evidence, the government likewise argues that the information was not material to the issues. For the following reasons, we agree with the government's contentions.
The purpose of Giglio and its progeny is "to insure that the jury knows the facts that might motivate a witness in giving testimony." Brown v. Wainwright, 785 F.2d 1457, 1465 (11th Cir.1986) (quoting Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S.Ct. 510, 78 L.Ed.2d 699 (1983)). In United States v. Bruner, 657 F.2d 1278 (D.C.Cir.1981...
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