U.S. v. Houston

• Citation: 648 F.3d 806,2011 Daily Journal D.A.R. 11661,11 Cal. Daily Op. Serv. 9751
• Decision Date: 03 August 2011
• Docket Number: Nos. 07–50478,08–50165.,s. 07–50478
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Henry Michael HOUSTON, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Wayne Bridgewater, also known as Seal M(13), Defendant–Appellant.

648 F.3d 806

11 Cal. Daily Op. Serv. 9751

2011 Daily Journal D.A.R. 11,661

UNITED STATES of America, Plaintiff–Appellee,

v.Henry Michael HOUSTON, Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Wayne Bridgewater, also known as Seal M(13), Defendant–Appellant.

Nos. 07–50478

08–50165.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2011.Filed Aug. 3, 2011.

John C. Lemon, San Diego, CA, for defendant-appellant Henry Michael Houston.William S. Harris, Law Offices of Wm. S. Harris, South Pasadena, CA, for defendant-appellant Wayne Bridgewater.Stephen G. Wolfe, Assistant United States Attorney, Santa Ana, CA (argued); Terri K. Flynn, Assistant United States Attorney, Santa Ana, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding. D.C. Nos. CR–02–00938–DOC–031, 2:02–cr–00938–DOC–13.Before: PAMELA ANN RYMER, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

RYMER, Circuit Judge:

Henry Michael Houston and Wayne Bridgewater were jointly tried and convicted of a substantive Racketeer Influenced and Corrupt Organizations Act (RICO) violation, 18 U.S.C. § 1962(c); RICO conspiracy, 18 U.S.C. § 1962(d); and two counts of violent crimes in aid of racketeering activity (VICAR), 18 U.S.C. § 1959, arising out of their membership in the Aryan Brotherhood (AB). Each was sentenced to life in prison without possibility of parole. They appeal, raising Brady¹ and Napue² issues, and claiming instructional error. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

A

For some time prior to August 28, 1997, racial tension between the Aryan Brotherhood ³ and DC Blacks ⁴ prison gangs had been growing at the United States Prison at Lewisburg. On the morning of August 28, Bridgewater, an AB member, and Al Benton, a member of the AB's three-person governing Commission for federal prisons, opened a letter from Tyler Bingham, another AB federal commissioner. The letter contained invisible ink that, when heated, revealed the phrase “War with DC Blacks.” At 10:53 A.M., Benton called Ronnie Slocum, who had forwarded the letter, to find out why the AB was now at war with the DC Blacks. Afterwards, Benton started to plan an assault on the DC Blacks.

Benton testified that around noon, he mentioned the war to Houston, an AB recruit. Houston told Benton, “I'm with you.” Houston never expressed any hesitation about killing DC Blacks members. Benton testified that if Houston had attempted to withdraw from the plan, he would have killed him for disobedience. Meanwhile, Bridgewater, on his own initiative, recruited two more inmates, John Campbell and Jason Schwyhart, for the assault.

After lunch, Benton, Houston, Bridgewater, Campbell, and Schwyhart met to discuss the killings. They noticed a small hitch—that Benton, Bridgewater, Campbell, and Schwyhart were housed in A Unit and Houston in B Unit. Inmates could not freely travel between the units. As a solution, Houston offered to kill DC Blacks members in B Unit by himself. Benton rejected this as too dangerous because Houston would be outnumbered. Instead, Benton planned to sneak Houston into A Unit. Benton testified that he succeeded in getting Houston into A unit around 4:30 to 5:00 P.M. A prison guard confirmed that Houston was in A Unit (including in Benton's cell) after the murders. Also, a security camera recorded Houston moving from B Unit to A Unit around 6:24 P.M.

At night, Benton, Bridgewater, Houston, Campbell, and Schwyhart met in Benton's room. Each armed himself with a knife-like weapon. Then they split into two groups, one composed of Houston and Benton, and the other of Bridgewater, Campbell, and Schwyhart. Benton ordered Bridgewater to kill a specific DC Black member, which Bridgewater refused to do because he knew the man too well. Benton then ordered him to kill a man named “Red.” Bridgewater again did not go through with the murder because Red was in the shower. At this point, Benton became upset at Bridgewater's reluctance to kill.

Not wanting to deal with Bridgewater any longer, Benton went off with Houston to kill Abdul Salaam. Benton initially stabbed Salaam through the throat. Houston then joined in the stabbing and in the process accidentally struck Benton. Salaam suffered thirty-four stab wounds, sixteen of which were fatal. After the killing, Houston threw both his and Benton's knives out the window, an act which Benton testified prevented him from killing more DC Blacks members. A DNA report found that Salaam's blood was on Benton's clothes and knife, but did not specify whether Salaam's blood was on Houston's clothes and knife.

Meanwhile Bridgewater, Campbell, and Schwyhart attacked Frank Joyner. Ball, another inmate, saw Bridgewater stab Joyner, who suffered thirty-five stab wounds, six of which were fatal. Shortly afterwards, Schwyhart stabbed Ball.

B

The jury convicted Houston of a substantive RICO violation and RICO conspiracy, 18 U.S.C. § 1962(c), (d), based on the predicate acts of a conspiracy to murder black inmates in violation of Cal.Penal Code §§ 182, 187, and the murder of Abdul Salaam in violation of 18 Pa. Cons.Stat. §§ 306, 2502. He was also convicted as a co-conspirator on two counts of VICAR murder, 18 U.S.C. § 1959, for the murders of Frank Joyner and Abdul Salaam.

Bridgewater was found guilty of a substantive RICO violation and a RICO conspiracy based on the predicate acts of a conspiracy to murder black inmates in violation of Cal.Penal Code §§ 182, 187; and the murders of Frank Joyner and Abdul Salaam, and the attempted murder of Titus Webster, all in violation of 18 Pa. Cons.Stat. §§ 306, 901, 2502. Bridgewater was also convicted as a direct participant and co-conspirator in the VICAR murder of Joyner and as a co-conspirator in the VICAR murder of Salaam.

Each received a sentence of life in prison without parole. Both timely appeal their convictions.

II

On the last day of its case, the government called Irvin McConaghy, a jailhouse informant. Before trial, the government had disclosed a report of three interviews of McConaghy by Special Agent Michael Halualani on April 13, 2005, January 29, 2006, and January 16, 2007. During these interviews, McConaghy stated that Houston had told him “if the BOP lets [me] out of the Control Unit [I am] going to continue killing DC Blacks ‘until they kill [me].’ ” On April 13, 2007, several days before McConaghy took the stand, the prosecution emailed the defense that McConaghy was now expected to testify that Houston “actually stated he is going to continue killing ‘niggers' referring to the DC Blacks.” At trial, McConaghy gave testimony along these lines: “[Houston] said if the government doesn't give him the death penalty for what they did to those niggers in Lewisburg, then as soon as he gets out of the control unit, he will kill more niggers, and he's going to continue to kill until someone kills him.”

On cross-examination, the defense questioned McConaghy about his appearance in other proceedings in which he did not mention Houston. McConaghy testified in a different trial in 2004 that he had information about Campbell, but said nothing about Houston. He also testified before the grand jury in this case on April 13, 2005, but talked only about Campbell. This line of inquiry implied that McConaghy had made up Houston's statement after his deal to testify against Campbell fell through because of Campbell's death. McConaghy acknowledged that he “probably” found out Campbell died after his testimony in 2004 and 2005, but testified that he had told Pennsylvania-based Assistant United States Attorney (AUSA) Fred Martin about Houston's statement during an interview in 2003. This testimony surprised the prosecuting AUSA, who called Martin for his interview notes during the first break and turned them over to the defense while McConaghy was still on the stand. Martin's notes reflect nothing about Houston. The defense then cross-examined McConaghy based on the notes, suggesting that he was lying when he said that he had told AUSA Martin about Houston because the interview notes didn't say so. Houston's counsel made these same points during closing.

After a failed effort to arrive at a stipulation as to what Martin's testimony would be, the defense subpoenaed him to testify but did not call him as a witness until the penalty phase. Martin testified at that point that he did not recall whether McConaghy told him anything about Houston. Martin testified it was possible, but “fairly unlikely,” that he would have failed to record McConaghy's statement about Houston, if McConaghy had made it. He also indicated that in 2003 he had told an AUSA in the United States Attorney's Office for the Central District of California that McConaghy could be a useful witness, primarily against Campbell. Finally, Martin testified that, once the issue surfaced at trial, he told the prosecuting AUSA that he didn't recall McConaghy saying anything about Houston. He denied telling her that McConaghy did not say any such thing.

Houston and Bridgewater argue that the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose McConaghy's anticipated testimony, Martin's 2003 interview notes, and Martin's recollection of the interview.⁵ They also contend that the government knowingly presented perjured testimony by McConaghy in violation of Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935), and Napue, 360 U.S. at 269, 79 S.Ct. 1173. At the very least, they submit, the government failed to fulfill its duty to investigate the truthfulness of McConaghy's testimony.

We review for plain error whether the government failed to disclose exculpatory evidence and knowingly presented perjured testimony because these claims were not presented to the district court. See United States v....