U.S. v. Curtis, No. 02-16224.

Citation380 F.3d 1311
Decision Date11 August 2004
Docket NumberNo. 02-16224.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Garland George CURTIS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Rosemary T. Cakmis, R. Fletcher Peacock and James T. Skuthan (Fed. Pub. Defenders), Orlando, FL, Maria Guzman (Fed. Pub. Def.), Tampa, FL, for Defendant-Appellant.

Linda Julin McNamara, Tamra Phipps, Tampa, FL, Susan H. Raab, Jacksonville, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before ANDERSON, BLACK and HILL, Circuit Judges.

HILL, Circuit Judge:

Garland Curtis was convicted of sexually assaulting a victim by force. 18 U.S.C. § 2241(a). He appeals the denial of his motion for a judgment of acquittal or for a new trial.

I.

Garland Curtis, a waiter on a cruise ship, was convicted of sexual assault on a female passenger. Prior to his trial, Curtis was incarcerated in the Seminole County, Florida, jail. Also confined in that jail was Robert Bojan. Bojan, who had a record of felony convictions, had pled guilty to several other federal offenses based upon fraudulent conduct and was awaiting sentencing. Russell McLatchey represented Bojan. Bojan told McLatchey that Curtis confessed he had sexually assaulted the passenger.

McLatchey notified government counsel, Matthew Perry, who was prosecuting Curtis, of the confession. McLatchey, Bojan, and Perry, along with FBI agent Evans, met with Bojan to discuss the Curtis confession. During the meeting, the parties discussed the possibility that the government might file a motion in Bojan's fraud case notifying that court of his substantial assistance in the Curtis case and urging a sentence reduction. It is this discussion that provides the factual basis for the issue now before us.1

Some three weeks later, McLatchey wrote a letter to Perry in which he referred to "promises" Perry made to Bojan at the meeting. Bruce Ambrose, government counsel prosecuting Bojan, responded by letter denying that the government made any promises to Bojan to assist him in exchange for his testimony. This letter was followed by a telephone call from both Perry and Ambrose to McLatchey reaffirming that the government had not promised to assist Bojan in any way.

Soon thereafter, Perry disclosed to Curtis' counsel that Bojan would testify and the details of the initial meeting between the government and Bojan. Additionally, the government provided defense counsel copies of the McLatchey letter and the Ambrose response. The government said then:

As to Robert Bojan, the Government has not made any promises of favorable treatment or provided compensation to him and he has no written plea agreement. In return for Mr. Bojan's cooperation in this case, the government will consider same for a determination of whether he qualifies for substantial assistance, the same as any cooperating defendant. We have also agreed to bring his cooperation to the attention of state or local authorities if requested. Mr. Bojan contacted the Government about cooperating in this case and has never personally declined to cooperate herein, although there were discussions with his attorney about his willingness to do so. Enclosed you will find copies of two letters, one dated December 20, 2001, from Mr. McLatchey and one dated January 2, 2002, from AUSA Ambrose discussing Mr. Bojan's cooperation. The Government does not believe these letters are either Brady or Giglio but they are provided to you in an abundance of caution.

Finally, both Perry and an FBI agent met with Bojan to be sure that he knew that if he testified, he did so without any promise from the Government to seek to reduce Bojan's sentence. Bojan indicated that he understood.

At trial, Bojan testified about the confession. He was thoroughly impeached on cross-examination and by a defense witness (his former girlfriend) as a liar and felon whose testimony was unworthy of belief. Bojan made abundantly clear, when asked, that he was testifying because he hoped the government would assist him at his sentencing, although no definite promise had been made him. He also testified that McLatchey was negotiating with the government for such assistance.

Throughout these proceedings and during the trial,2 Bojan and McLatchey talked frequently by phone. These jailhouse conversations were recorded. In them, the two discussed what they could expect from the government in return for Bojan's testimony.

After the case was submitted to the jury, Curtis discovered that the government had, in fact, filed a substantial assistance motion for Bojan in his pending fraud case and that Bojan had received a downward departure in his sentence. Curtis filed an emergency motion for mistrial, which the court heard after the verdict had been returned.

At the hearing, Curtis asserted that the government had withheld the fact that it had a "deal" with Bojan with regard to his testimony. Curtis argued that the fact that the government had filed a substantial assistance motion proved the existence of such a deal.

Ambrose and Perry testified that they had not agreed to any deal with Bojan, and had made no promise to assist him in any way. Ambrose further testified that, after Bojan's testimony in the Curtis trial, he sought supervisory approval to file a substantial assistance motion in Bojan's fraud case, which he received.

McLatchey testified that he was not aware of any promises by the government other than a "general understanding" that Bojan would "be in line for favorable consideration" if he testified truthfully. He denied that Perry ever indicated that "he would take care" of Bojan in exchange for testimony. Rather, he stated that Perry made clear that in exchange for truthful testimony "he would do what he could to assist us in the future." He conceded writing a letter detailing Bojan's cooperation "deal," but testified that he had only been hoping that the government would acknowledge such a deal. Finally, he expressly denied any agreement, at any time, that the government would seek to reduce Bojan's sentence in exchange for his testimony.

The district court denied Curtis' motion for a mistrial, holding that the evidence clearly established that "there is no deal that was made with reference to Bojan's testimony."

Shortly thereafter, the defense obtained the recordings of the telephone calls between Bojan and McLatchey. Believing that this "newly discovered" evidence demonstrated that there was such a deal, Curtis renewed his motion for a mistrial. He argued that the telephone calls revealed that the government did have a deal with Bojan, the failure to reveal which constituted a Brady violation. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He also asserted that Bojan lied at the trial when he denied that he had such a deal and that the government relied upon this perjured testimony in violation of Giglio. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

After a second evidentiary hearing, the district court denied the motion in a written order. The court found that there was no factual basis for Curtis' claims under Brady and Giglio. First, the court found that the testimony of Bojan, McLatchey, Perry, and Evans specifically denying the existence of a deal between Bojan and the government was credible. The court found that the content of the discussions between Bojan and the government regarding leniency were fully and fairly reported to the defense, including the possibility that the government would consider filing a recommendation for substantial assistance before Bojan's sentencing. Next, the court carefully reviewed the "newly discovered" evidence in the telephone recordings and determined nothing in those calls refuted the direct testimony that there was no deal. In fact, the court found that the calls supported the government's contention that it made no explicit promise to Bojan. Finally, the court found that nothing in the telephone calls established that Bojan perjured himself at Curtis' trial.3 The court found that the calls supported Bojan's testimony that Curtis did confess to him.

The court then held that there was no legal basis for the Brady and Giglio claims. There were no violations because the government provided Curtis with the substance of its discussions with Bojan and there was no further "deal" that was kept secret. The court held that the calls revealed that the relationship between Bojan and the government was exactly what was described in the letter from Perry to Curtis' counsel. Furthermore, there was no Giglio violation because Bojan did not perjure himself when he testified that he had no specific "deal," and the government, therefore, did not argue to the jury based upon perjured testimony.4

Additionally, the court held that Curtis' Brady and Giglio claims must fail because (1) Bojan's testimony was not critical to the prosecution since there was ample other evidence of Curtis' guilt; (2) the allegedly "newly discovered" evidence of the calls would, had it been available at trial, been merely cumulative to the substantial impeachment of Bojan that already had taken place, and (3) Curtis had not shown that this evidence would likely have changed the results of his trial.

On appeal, Curtis asserts that this denial was error because the government failed to disclose the "deal" between it and Bojan, permitted Bojan to falsely testify that there was no deal, and then relied on...

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