U.S. v. Iverson

• Decision Date: 03 April 1981
• Docket Number: No. 79-1231,79-1231
• Parties: UNITED STATES of America, v. Jaynell M. IVERSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 799

637 F.2d 799

205 U.S.App.D.C. 253

UNITED STATES of America, v. Jaynell M. IVERSON, Appellant.

No. 79-1231.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 12, 1979.

Decided Dec. 3, 1980.

Rehearing Denied April 3, 1981.

Barbara Kammerman, Washington, D.C., with whom Lawrence H. Schwartz, Washington, D.C. (both appointed by the court), was on brief, for appellant.

Pamela M. Sayad, Asst. U. S. Atty., Washington, D.C., with whom Carl S. Rauh, U. S. Atty., Washington, D.C., at the time brief was filed, John A. Terry, Michael W. Farrell, and David S. Krakoff, Asst. U. S. Attys., Washington, D.C., were on brief, for appellee.

Before BAZELON, Senior Circuit Judge, TAMM, Circuit Judge, and HAROLD H. GREENE, ^* U.S. District Judge for the District of Columbia.

Opinion for the court filed by District Judge HAROLD H. GREENE.

Dissenting opinion filed by Circuit Judge TAMM.

HAROLD H. GREENE, District Judge:

This is an appeal from a conviction of forgery, uttering, and possession of stolen mail matter. 18 U.S.C. §§ 495, 1708. The only claim of error to merit extended discussion ¹ is that the jury, with prosecutorial acquiescence, was given the erroneous information that at the time of appellant's trial her alleged accomplice, a key witness against her, had already been sentenced for her participation in the criminal venture and therefore had nothing to gain from testifying for the government.

I

Since Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it has been clear that the prosecutorial suppression of evidence favorable to the accused, if material to guilt or punishment, is violative of due process, and that the government is affirmatively required to disclose all exculpatory materials. Moreover, both before and after Brady, in decisions now generally considered under the Brady rubric, the Court has held that a conviction obtained by the knowing use of perjured testimony violates the defendant's right to a fair trial mandated by the due process clauses of the Fifth and Fourteenth Amendments. United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). This rule applies both when the testimony relates directly to an essential element of the government's proof and when it affects the credibility of a crucial witness. "The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Napue v. Illinois, supra, 360 U.S. at 269, 79 S.Ct. at 1177. ²

In elaboration of these general rules, it is established that the prosecutor has an affirmative obligation to correct the record when a principal prosecution witness falsely claims that no promises of leniency were made, and that, should he fail to discharge that obligation, the defendant may be ³ entitled to a new trial on due process grounds. See, e.g., Napue v. Illinois, supra, 360 U.S. at 264, 79 S.Ct. at 1173; Giglio v. United States, 405 U.S. 105, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); United States v. Barham, 595 F.2d 231 (5th Cir. 1979); Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976); United States v. Pope, 529 F.2d 112 (9th Cir. 1976).

Compliance with these principles in this case demanded that the prosecutor set the record straight when the principal prosecution witness falsely adduced facts which led the jury to believe that she could not possibly derive gain from her testimony against appellant.

II

The evidence against appellant indicated that on May 10, 1978, she assisted one Susan Johnson in cashing a stolen, forged government check at the American Security and Trust Bank. There was ample proof that Johnson stole and forged the check, ⁴ and that appellant was present at and facilitated the cashing. The principal contested issue before the jury was whether appellant's participation ⁵ was accompanied by the requisite criminal intent, or whether, as she claimed, she was duped into assisting Johnson with an illegal check-cashing transaction wholly conceived and implemented by the latter. On that issue, Johnson's testimony differed sharply from that given by appellant.

Appellant testified at trial that she merely assisted Johnson in cashing a check at a bank where appellant had a friend because Johnson herself did not have a bank account, and that she did not know that the check was stolen. Johnson, on the other hand, stated that she fully discussed the true status of the check with appellant, and that the latter assisted her in the expectation of receiving part of the proceeds. According to Johnson, she showed appellant the check, appellant stated that she knew a teller who might be able to cash it, and arrangements were made to meet the following day to complete the transaction. Johnson stated that she did sign the check at the bank in the presence of appellant ⁶ and after cashing it gave appellant $400 to divide with another accomplice.

Thus, Johnson's credibility was critical. In an effort to test that credibility, appellant's counsel cross-examined her regarding the status of the criminal charges against her arising out of the check-cashing incident, as follows:

"Q. You were you haven't been sentenced in that case, have you?

A. Yes, I have.

Q. When were you sentenced?

A. The 28th.

Q. Of October?

A. Yes.

Q. What sentence did you receive?

A. I received three months' supervision. After three months, I have to go back in front of the judge that sentenced me. It was Judge Gesell. If I went by the requirements of the Court, that I could have my probation transferred to Michigan." ⁷

The witness' claim that she had already been sentenced was untrue. In fact, she pleaded guilty on September 20, 1978, and her sentencing was deferred from October 27, 1978, to January 15, 1979, that is, from four weeks before appellant's trial to six weeks after that trial. ⁸ Her false statements had the inevitable effect of leading the jury to the erroneous conclusion that she could not gain from cooperating with the government and that her testimony was therefore unlikely to be tainted by an improper pro-government bias. ⁹ Yet, the prosecutor, who knew or should have known ¹⁰ the actual facts, remained silent, and he did nothing to alert the Court and jury to the truth. In our view, that failure to correct the witness' misrepresentations was improper and warrants a new trial.

In practical experience, few, if any, factors are more likely to induce an accused to testify, possibly falsely, against another, than the expectation of prosecutorial or sentencing leniency. ¹¹ Jurors are not unaware that an alleged accomplice who has not yet been charged or sentenced is susceptible to direct or indirect pressure to cooperate with the government and that his testimony should therefore be considered with special caution. United States v. Thorne, 174 U.S.App.D.C. 57, 527 F.2d 840 (1975); Stith v. United States, 124 U.S.App.D.C. 81, 361 F.2d 535 (1966). One who has already been sentenced is of course immune to this kind of pressure. For that reason when, in the context of an exploration of the issue of possible leniency in return for cooperation, a witness falsely claims that he has already been sentenced, the claim and its falsity are as damaging to the defendant's due process rights as would be a false assertion that no promise of leniency was ever made. In the one instance the witness' false claim is that he has not been given or promised consideration by the government; in the other that he cannot be given such consideration.

The record here does not affirmatively show whether Johnson was promised by the prosecution that her cooperation would be brought to the attention of the sentencing judge. ¹² As it turned out, while the prosecutor did not, in fact, recommend leniency when Johnson was finally sentenced after appellant's trial, neither did he press for a stiff sentence in spite of her criminal record. Moreover, and more significantly, we do not and cannot now know what the effect on the prosecutor and the sentencing judge would have been had Johnson failed or refused to testify against appellant. ¹³ The vice in the prosecutor's silence lay precisely in its preclusion of an exploration of this and similar issues. ¹⁴

Only by being apprised that Susan Johnson was still facing sentencing could the jury have a rational basis for deciding whether her persistent efforts to assign a share of the culpability to appellant were the product of a desire to tell the truth or an effort to ingratiate herself with the prosecutor, the sentencing judge, or both. Because the misinformation provided by the witness and the silence of the prosecutor ¹⁵ deprived the jury of the opportunity to make its own judgment concerning Johnson's credibility, it seriously flawed the proceedings. ¹⁶

Our conclusion regarding the prosecutor's obligation in these circumstances is further buttressed by the fact that at the outset of the appellant's trial defense counsel alerted the Court and the prosecutor to his belief that Johnson would give false testimony. Counsel correctly asserted that numerous inconsistencies existed between the statement the witness gave to law enforcement officials and her grand jury testimony as well as between that testimony and the evidence she was expected to give at trial, ¹⁷ and for that reason he requested that she be prohibited from testifying. The trial court rejected the request, stating that the possibility of perjury was inherent whenever the government relied on witnesses who had themselves been involved in the crime. Appellant...