U.S.A. v. Huddleston

• Decision Date: 04 August 1999
• Docket Number: No. 99-1144,99-1144
• Citation: 194 F.3d 214
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. MARK E. HUDDLESTON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 214

194 F.3d 214 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. MARK E. HUDDLESTON, Defendant, Appellant.

No. 99-1144.

United States Court of Appeals for the First Circuit.

Heard Aug. 4, 1999.

Decided Oct. 19, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Copyrighted Material Omitted] Bruce M. Merrill, with whom Bruce M. Merrill, P.A. was on brief, for appellant.

F. Mark Terison, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, was on brief, for appellee.

Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Boudin, Circuit Judge.

SELYA, Circuit Judge.

For many years, the courts of appeals have been divided over what legal standard obtains when a convicted defendant premises a motion for new trial on a claim that he has newly discovered that the case against him was based in part on the prosecutor's unwitting use of perjured testimony. Some courts apply a "probability" standard in such situations, granting relief only if the discovery "probably" or "likely" -- courts in this context use the terms interchangeably, and we shall use the former -- would lead to an acquittal. See United States v. Torres, 128 F.3d 38, 49 (2d Cir. 1997), cert. denied, 118 S. Ct. 1399 (1998); United States v. Sinclair, 109 F.3d 1527, 1532 (10th Cir. 1997); United States v. Tierney, 947 F.2d 854, 860-61 (8th Cir. 1991); United States v. Krasny, 607 F.2d 840, 844-45 (9th Cir. 1979); United States v. Stofsky, 527 F.2d 237, 245-46 (2d Cir. 1975). Others apply a "possibility" standard, granting relief whenever the discovery "might" have produced an acquittal. See United States v. Wallace, 528 F.2d 863, 866 (4th Cir. 1976); Gordon v. United States, 178 F.2d 896, 900 (6th Cir. 1949); Larrison v. United States, 24 F.2d 82, 87 (7th Cir. 1928). The case at hand requires us to enter this debate and articulate our position.

We conclude that newly discovered evidence that the case against a defendant rested in part on a prosecutor's unwitting use of perjurious testimony should be treated in the same manner as any other newly discovered evidence for purposes of post-conviction relief. Specifically, a court should grant a motion for a new trial based on the prosecutor's unwitting use of perjured testimony only if the discovery of both the fact and nature of the perjured testimony, along with the content of the corrected testimony, probably would result in acquittal upon retrial. Thus, we reject the "possibility" standard in favor of the "probability" standard. Because the court below did not err in this or any other material respect, we affirm the judgment.

I. BACKGROUND

We sketch the facts, referring the reader who hungers for greater specificity to the district court's more exegetic account. See United States v. Huddleston, 23 F. Supp. 2d 72, 73-75 (D. Me. 1998).

In June 1997, two members of a drug-distribution ring (Roberto Santana-Rivera, a/k/a "Chago," and Miqueas Rodriguez-Gonzalez, a/k/a "Gonzo") began to cooperate with the federal Drug Enforcement Administration (DEA). In the course of that endeavor, the DEA monitored a series of telephone calls in which Gonzo and defendant-appellant Mark E. Huddleston planned a cocaine buy. Tapes of these conversations memorialized such statements by the appellant as:

--Well, they got some customers lined up if you want to deliver. . . . I can go through an ounce anyway.

--You bring me an ounce and I'll have your money within f_ _ _ _ _g five hours.

These conversations culminated in an agreement to meet at a Burger King restaurant in Kennebunk, Maine.

When the appellant kept the date, he was arrested and advised of his rights. He failed to heed the advice. At the scene, he was heard to say:

--[H]ey man, you got to eat. I'm tired of getting ripped off by dope dealers [down in Lowell]. You got to do what you got to do.

--[I]t's only been since last fall, those guys made it easy for me. You guys are doing the right thing, you had to come and stop it some time.

--$650, two or three ounces, it's not a lot, you know that.

--[T]here's three guys I deal to, that's all, man.

En route to a nearby jail, the appellant remained loquacious. He told a DEA agent that he had started using and selling cocaine received from Chago and/or Gonzo as far back as March of 1997.

At trial, the government called Chago and Gonzo, among other witnesses. They identified themselves as Roberto Santana-Rivera and Miqueas Rodriguez-Gonzales, respectively, and each testified that the nature of his relationship with the appellant was as a cocaine source. On cross-examination, both men professed to be Puerto Rican rather than Dominican.

The appellant testified to his own behoof. He proclaimed an interest in exports to the Dominican Republic and linked his involvement with Chago and Gonzo to that embryonic enterprise. As part and parcel of this story, he claimed that Chago and Gonzo held themselves out to be Dominicans with extensive contacts in their homeland, and that, at Chago's urging, he had restored several cars for export to that country. He denied that he planned to meet Gonzo at the Burger King on the day he was arrested for anything more sinister than to retrieve some personal belongings. In this vein, he explained that he requested "an ounce" from Gonzo because he hoped to lure Gonzo to his home so that he could ascertain where Gonzo lived and ultimately retrieve his belongings. When Gonzo declined, the appellant agreed to the Burger King rendezvous in a continuing effort to recover his possessions.¹

The jury rejected the appellant's defense and found him guilty of both attempted possession of cocaine with intent to distribute and conspiracy to distribute. See 21 U.S.C. §§ 841(a), 846. At that point, the plot thickened: the government learned prior to sentencing that Chago and Gonzo had assumed false identities and nationalities, and that both men had lied on the witness stand anent these matters. In reality, the men were Dominican nationals (named Roland Garcia-Rodriguez and Pedro Herrara-Sarita, respectively), who had entered the country illegally. See United States v. Herrara-Sarita, 181 F.3d 81 (table), 1999 WL 525924, at *1, *3 (1st Cir. Jan. 15, 1999) (unpublished opinion encompassing sentencing appeals brought by Chago and Gonzo). The government promptly notified the appellant of its discovery.

Claiming that the government had failed to provide him with evidence material to his defense and that Chago's and Gonzo's perjury had tainted the verdict, the appellant moved for a new trial. See Fed. R. Crim. P. 33 (providing that the trial court "[o]n a defendant's motion, . . . may grant a new trial to that defendant if the interests of justice so require"). The district court denied the motion, see Huddleston, 23 F. Supp. 2d at 79, and thereafter imposed a 24-month incarcerative sentence. This appeal ensued.

II. ANALYSIS

The appellant advances three propositions. His flagship argument involves a contention that the lower court misapprehended the legal standard to be applied to newly discovered evidence of perjury and that the correct standard, properly applied, mandates that his conviction be set aside. Next, he asseverates that the government's failure to fulfill its pretrial disclosure obligations entitles him to another day in court. Finally, he contests the court's calculation of the guideline sentencing range. We treat these arguments sequentially.

A. Perjured Testimony.

The appellant's most cogent claim is that the government's use of perjured testimony mandated a new trial. We review de novo the contention that the district court applied an incorrect legal standard. See In re Cusumano, 162 F.3d 708, 713 (1st Cir. 1998) (holding that "ample authority supports the proposition that, whatever the procedural context, pure questions of law warrant de novo review"). Once past this barrier, however, the trial court's application of the correct legal standard to the facts of a given case for the purpose of deciding a motion for a new trial is reviewed for abuse of discretion. See United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991).

As a general rule, four requirements must be satisfied before a court may grant a new trial on the ground of newly discovered evidence: (a) the evidence must have been unknown or unavailable to the defendant at the time of trial; (b) the defendant must have been duly diligent in attempting to unearth it; (c) the newly discovered evidence must be material; and (d) it must be such that its emergence probably will result in an acquittal upon retrial. See United States v. Tibolt, 72 F.3d 965, 971 (1st Cir. 1995); United States v. Slade, 980 F.2d 27, 29 (1st Cir. 1992); Natanel, 938 F.2d at 313.

The appellant contends, however, that a special, more defendant-friendly rule obtains in cases where, as here, the newly discovered evidence comprises perjured testimony: in such purlieus, he opines, a defendant need only show that the newly discovered evidence "might" produce a different result, not that it "probably" would produce a different result. This formulation, familiarly known as the Larrison rule, has been adopted in three circuits. See Wallace, 528 F.2d at 866 (4th Cir.); Gordon, 178 F.2d at 900 (6th Cir.); Larrison, 24 F.2d at 87 (7th Cir). Four other circuits, however, have rejected it, at least insofar as it applies to the government's unwitting use of perjured testimony. See Sinclair, 109 F.3d at 1532 (10th Cir.); Tierney, 947 F.2d at 860-61 (8th Cir.); Krasny, 607 F.2d at 844-45 (9th Cir.); Stofsky, 527 F.2d at 245-46 (2d Cir.).

The district court gave the appellant's argument serious consideration, noting, inter alia, that if Larrison controlled, it would grant a new trial. See Huddleston, 23 F. Supp. 2d at 78. But after a thoughtful exposition of the divided authorities, the court rejected the Larrison rule and found the appellant's proffer wanting under either the...