U.S. v. Griley

• Decision Date: 26 March 1987
• Docket Number: No. 85-5551,85-5551
• Citation: 814 F.2d 967
• Parties: UNITED STATES of America, Appellee, v. Michael A. GRILEY, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 967

814 F.2d 967

55 USLW 2566

UNITED STATES of America, Appellee, v. Michael A. GRILEY, Jr., Appellant.

No. 85-5551.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 11, 1986.

Decided March 26, 1987.

Charles G. Bernstein, Baltimore, Md., (Diane Lank, Law Clerk, on brief), for appellant.

Glenda G. Gordon, Asst. U.S. Atty. (Breckinridge L. Willcox, Baltimore, Md., on brief), for appellee.

Before ERVIN, WILKINSON, and WILKINS, Circuit Judges.

ERVIN, Circuit Judge:

Michael A. Griley, Jr. appeals from a jury verdict convicting him of violating the National Firearms Act, 26 U.S.C. Sec. 5801 et seq. (1982). In challenging his conviction, Griley raises two principal issues. ¹ He attacks the government's alleged misrepresentations to the jury regarding a witness's plea bargain. He also challenges the adequacy of the court's instruction on venue. Although we find some merit in the first challenge, the trial court's allowance of the government's alleged misrepresentations is not reversible error. We therefore affirm Griley's convictions.

I.

In 1984, Michael A. Griley, Jr. lived on the military reservation at Fort Meade, Maryland. Griley's wife was on active duty in the United States Army and Griley was in the army reserves. Five M-16 machine guns were stolen from Fort Meade in April of 1984. Smith, an informant, told the government that Griley had at least one of the guns. Two government agents, FBI Special Agent Sullivan and an agent from the Criminal Investigation Division (CID) of the Department of the Army searched Griley's premises at Fort Meade. They told Griley that they were looking for an M-16 rifle, but they turned up nothing in their search.

This search allegedly prompted Griley to call his mother, Mrs. Tracey, who was in California at the time, and tell her to get rid of "the thing" he had placed in the attic of her home in Virginia. Mrs. Tracey, in turn, phoned George Stevenson, a friend of hers who was occupying her Virginia home, and told him to retrieve the package from the attic. Upon Mrs. Tracy's instructions, Stevenson found an M-16, without a serial number or bolt, broken down in a bag inside a trunk in the attic. He promptly turned over the bag and its contents to the Air Police at the Oceana Naval Air Station.

Griley was indicted by a federal grand jury in the District of Maryland on May 7, 1985. He was charged with possessing an unregistered machinegun, in violation of 26 U.S.C. Sec. 5861(d) (1982) (Count I), and with interstate transportation of an unregistered machinegun, in violation of 26 U.S.C. Sec. 5861(j) (1982) (Count II). After a jury trial before a district judge, Griley was found guilty on both counts. The district judge sentenced Griley to four years on each count, to run concurrently, all but six months being suspended. Griley's motion to stay his sentence pending appeal was denied; he served his sentence in a Baltimore institution. Griley filed a timely notice of appeal with this court.

II.

Griley's first assignment of error relates to testimony by Moran, a government witness. Prior to Griley's trial, Moran had pled guilty to making a false statement on a firearms transaction record, in violation of 18 U.S.C. Sec. 922(a)(6) (1982). As part of his plea agreement, Moran stated that he would "fully and truthfully" testify at all state and federal trials where his testimony might be relevant. The government subsequently called Moran to testify at Griley's trial, which took place before Moran's sentencing hearing.

In his testimony, Moran stated that he had visited Griley's house in Fort Meade, where Griley pulled out a lower receiver for an M-16, marked "Property of United States Government." Moran testified after he had entered a plea agreement with the government. Griley's attack on this testimony is essentially threefold: he contends that the government did not call Moran's crimes to the attention of the district judge; the government failed to point out Moran's perjured testimony; and the government improperly improved upon its "no recommendation" agreement after trial by urging probation.

The first two points merit little discussion. Griley lists several acts which Moran allegedly performed, including fire-bombing phone booths. According to Griley, the prosecutor reneged on her promise to tell the district judge about these acts. Yet, Griley cites no authority which establishes that the government is bound to recount all of its witness' offenses--many of which were described in the presentence investigation report or in open court--for the district judge's benefit. ²

Griley contends that Moran testified falsely at the trial, and that the government failed to point this out to the jury. In some situations, the government's use of false testimony to obtain a conviction may violate the fourteenth amendment's due process clause. Before a constitutional violation is found, however, certain conditions must be present. Generally, due process is denied if the government knowingly uses perjured testimony against the accused to obtain a conviction. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). The government does not have to solicit the false evidence; it is enough if the government allows the evidence to go uncorrected when it surfaces. Id.

The burden of establishing Moran's perjury presents the greatest stumbling block for Griley. A defendant seeking to vacate a conviction based on perjured testimony must show that the testimony was, indeed, perjured. See Dansby v. United States, 291 F.Supp. 790, 793 (S.D.N.Y.1968). Mere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony. See Overton v. United States, 450 F.2d 919, 920 (5th Cir.1971).

Griley has not met the heavy burden of showing that Moran testified falsely. At trial, Moran described his participation in the army and his involvement in various alleged crimes. Griley claims that Moran has not withdrawn from the army as the plea agreement requires him to do. The plea agreement, however, merely stipulates that Moran will take the necessary steps to sever his ties with the army. On cross-examination, Moran demonstrated that he is taking these steps: he has applied for a discharge and terminated his army commission, among other things. On cross-examination, Moran also denied that he had fire-bombed phone booths at Fort Meade. In attacking this denial, Griley points to the testimony of another witness, Smith, who stated that Moran accompanied him twice when he blew up the phone booths. Yet, Smith's statement creates, at most, inconsistent testimony for the jury to weigh; it does not establish Moran's perjury.

Griley's strongest argument concerns a change in Moran's plea arrangement. The prosecutor's initial plea letter stated: "At his sentencing, the United States Attorney's office will make no recommendation as to the sentence Mr. Moran should receive." The government also reserved the right to oppose a Youth Corrections Act sentence if the sentence were available. At the sentencing hearing, however, the government changed its recommendation. The prosecution stated:

Under the terms of the plea agreement, Your Honor, the government agreed to make no recommendation as to sentence, however, ... we have no objection to the Defendant's request that the Defendant be placed on probation in this case. Indeed, we think that that would be appropriate, given what's taken place.

Griley claims that this change in the sentencing recommendation implies prosecutorial misconduct. By including "no recommendation" in the plea letter, Griley argues, the government indicated that it was not going to give Moran special treatment in exchange for his testimony. Yet, the government actually helped Moran by approving his probation. According to Griley, the government thereby misled the jury and the district judge as to Moran's motives to testify truthfully. At trial, Moran explained the terms of his plea agreement; Moran told the jury that he understood that no recommendation would be made as to his sentence. The jury, then, had no reason to think that Moran would favor the government in his testimony.

In her brief and at oral argument, the prosecutor explained her reasons for changing the initial "no recommendation" position. At the sentencing hearing, the prosecutor supported probation because she thought that it was a better alternative to the more lenient Youth Corrections Act sentence which the court was considering. The prosecutor felt that a conviction on Moran's record might temper his fascination with firearms and deter him from committing further crimes. At oral argument, the prosecutor acknowledged that her sudden change in recommendation was unorthodox and might suggest a secret agreement with Moran. She stressed, however, that the government had not made such a secret agreement; the change in recommendation came as a complete surprise to Moran.

Although we do not find that the government's change in sentencing recommendation after trial amounts to prosecutorial misconduct in this case, we do not sanction the government's actions. Time and time again, the Supreme Court has emphasized the importance of supplying the jury with enough evidence to evaluate a witness's credibility in a criminal case. This is especially necessary when the witness enters a plea agreement with the government. The witness may be inclined to favor the government in his testimony in exchange for lenient treatment in his sentencing.

This danger is illustrated in Napue v. Illinois, supra. There, a state's witness, Hamer, testified that he had received no promise from the government in exchange for his testimony. The state's attorney, who knew that a promise to reduce Hamer's sentence had been made, remained silent and did not correct Hamer's false statement. The jury found the defendant guilty of murder, largely on the basis of Hamer's...