U.S. v. Payne

• Decision Date: 12 March 1997
• Docket Number: No. 95-3596,95-3596
• Citation: 102 F.3d 289
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Terrance L. PAYNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 289

102 F.3d 289

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Terrance L. PAYNE, Defendant-Appellant.

No. 95-3596.

United States Court of Appeals Seventh Circuit.

Argued May 22, 1996.

Decided Dec. 11, 1996.

Rehearing Denied March 12, 1997.

Melanie C. Conour, Office of the United States Attorney (argued), Indianapolis, IN, for Plaintiff-Appellee.

Steven J. Riggs, Indiana Federal Community Defenders, Inc. (argued), Indianapolis, IN, for Defendant-Appellant.

Before POSNER, Chief Judge, and KANNE and EVANS, Circuit Judges.

KANNE, Circuit Judge.

A jury convicted Terrance L. Payne of cocaine distribution charges. Payne's motions for a new trial and for a judgment of acquittal because of insufficient evidence were denied.

Payne appeals his conviction on the grounds that the district court abused its discretion by denying his motion for a new trial and his motion for judgment of acquittal. Payne alleges the following: 1) that the testimonial evidence supporting his conviction was perjured; 2) that the government failed to disclose important information to Payne as required under Brady; 3) that he was precluded from calling a witness who would have effectively impeached the testimony of a key prosecution witness; and 4) that the testimony of the government's key witnesses should have been stricken thus rendering the governments evidence insufficient to prove he was guilty beyond a reasonable doubt. ¹ After considering each of Payne's claims, we affirm the convictions.

I. History

Terrance Payne's convictions stem from an arrest that occurred when Payne and Demarco Thacker attempted to sell a kilogram of cocaine to Sergeant James T. Jones of the Marion County (Indiana) Police Department. Sergeant Jones used confidential informant James Lee to set up the cocaine sale between Payne, Thacker, and Jones. This sale was to take place in the parking lot of a Steak 'n Shake restaurant in Indianapolis.

At the time of this drug deal, Thacker and Payne both resided in Evansville, Indiana. On January 9, 1995, Thacker and Payne drove a rental car from Evansville to Indianapolis in order to meet with Lee and complete the cocaine sale. While in route to Indianapolis, Thacker telephoned Lee and instructed Lee that he and Payne would be in the city shortly. Lee then called Officer Jones to inform him that Thacker and Payne were on their way. Thacker and Payne drove to Lee's residence, where they picked him up and proceeded to the Steak 'n Shake restaurant to meet with Officer Jones. When they arrived at the Steak 'n Shake parking lot, Payne remained in driver's seat of the rental car while Thacker and Lee joined Officer Jones and another undercover agent in their car. At this time, Jones signaled other law enforcement officers to arrest Thacker and Payne. A subsequent search of the car revealed a kilogram of cocaine secreted inside an Audiovox telephone box that was located in the trunk of the rental car.

In connection with this attempted drug sale, Payne was charged with conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Payne did not testify at his trial. Payne's counsel, however, argued that Payne was not aware that Thacker intended to participate in a cocaine sale while in Indianapolis. Furthermore, Payne's counsel argued that Payne took no part in the cocaine sale and that he was merely a victim who happened to be in the wrong place at the wrong time.

Prior to Payne's trial, Thacker agreed to testify against Payne pursuant to a limited use immunity agreement and a plea agreement. These agreements required that Thacker divulge all information to the government regarding his past criminal activity in exchange for a downward departure from the sentence to be imposed for his criminal conviction. At trial, Thacker provided testimony that Payne had, in fact, participated in the attempted cocaine sale to the undercover agents.

Confidential informant Lee had been working with Officer Jones pursuant to a plea agreement from a prior cocaine possession charge. Lee's plea agreement required that he set up cocaine buys for Officer Jones in exchange for a downward departure in his sentence calculation.

In addition to setting up the cocaine transaction between Officer Jones, Thacker and Payne, Lee testified as a government witness in Payne's trial. Lee was compensated for his participation in the investigation, as well as for the testimony he provided at Payne's trial. Lee, like Thacker, testified that Payne knowingly participated in the attempted cocaine sale. Furthermore, Lee testified to his previous criminal convictions and to the compensation he received for acting as an informant and witness against Payne.

Payne's case was tried before a jury. At the conclusion of the trial, the jury found Payne guilty of the charges against him. Payne was then sentenced to a prison term of 262 months.

II. Analysis

A. Perjury Allegations

Payne contends that the district court erred in denying his motion for a new trial because the government introduced perjured testimony. "We review the denial of a motion for a new trial based on the prosecution's alleged use of perjured testimony under an abuse of discretion standard." United States v. Adebayo, 985 F.2d 1333, 1341 (7th Cir.1993) (quoting United States v. Guadagno, 970 F.2d 214, 220 (7th Cir.1992)). In Adebayo, we determined that:

A new trial should be ordered, on the basis of the prosecution's use of perjured testimony, if the defendant establishes that 1) the prosecution's case included perjured testimony; 2) the prosecution knew, or should have known, of the perjury; and 3) there is any likelihood that the false testimony could have affected the judgment of the jury.

Id. Proof of these three prongs is conjunctive. Accordingly, Payne will be afforded a new trial only if he can satisfy each of these three requirements.

Payne asserts that Lee was actively dealing cocaine at the same time that he was working as a confidential informant for the police department. Payne also argues that Lee failed to inform Officer Jones of his ongoing cocaine deals while he worked as a government informant. Because Lee allegedly failed to inform Officer Jones that he continued dealing drugs while acting as an informant, his testimony was perjured and therefore, should be stricken.

Payne's rationale for Thacker's alleged perjury is similar. Under Thacker's plea agreement, he was obligated to divulge all of his prior unlawful acts to the government. During Payne's cross-examination of Thacker, Thacker admitted that he had not disclosed all of his illegal activity to the government, as his plea agreement required. Payne, therefore, asserts that Thacker's testimony should be stricken on perjury grounds due to Thacker's failure to inform the government of his prior criminal activity.

We have described perjury as "the willful assertion under oath of a false, material fact." United States v. Verser, 916 F.2d 1268, 1271 (7th Cir.1990). Quite simply, the record indicates that neither Lee nor Thacker were under oath at the time they omitted telling the government of their criminal activities. Moreover, both Lee and Thacker, while testifying under oath, acknowledged that they had not fully apprised the government of their criminal activities as required under their plea agreements. At best, Lee's and Thacker's testimony at trial amounted to admissions by each that they had violated their respective plea agreements. Accordingly, Payne has not demonstrated that Lee's and Thacker's violation of their plea agreements constituted perjury at Payne's trial.

Payne advances another argument supporting his contention that Lee and Thacker committed perjury. According to Payne, the testimonial inconsistencies between Lee, Thacker, and the government agents serve as evidence that Lee's and Thacker's testimony amounted to perjury. Contrary to Payne's position, however, we have held that mere inconsistencies in testimony fall short of establishing perjury and most certainly do not establish that the government knowingly utilized perjured testimony. United States v. Adcox, 19 F.3d 290, 296 (7th Cir.1993). "[N]ot every testimonial inconsistency that goes uncorrected by the government establishes a constitutional violation." Verser, 916 F.2d at 1271; see also United States v. Douglas, 874 F.2d 1145, 1159 (7th Cir.1989).

Payne is correct in asserting that the testimony of Lee, Thacker and the other government witnesses contained some peculiar inconsistencies. For example, Lee and Thacker disagreed on when they first met each other. Likewise, Lee and Officer Jones differed on the length of time Lee had served as a government informant. Payne, however, has failed to demonstrate that these inconsistencies amounted to perjury. Consequently, we conclude that the district court did not abuse its discretion in refusing Payne's motion for a new trial based on perjured government testimony.

B. Disclosure of Brady Material

Payne's next contention is that the district court erred in denying his motion for a new trial because the government withheld Brady material. According to Payne, this undisclosed material would have allowed him to impeach Thacker. The Supreme Court has continually embraced the proposition that the prosecution has an affirmative duty to disclose all information that would exculpate a defendant. See Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This proposition, however, necessarily has temporal limitations. "We have repeatedly held that a party that fails to press an argument before the district court waives the right to present that argument on appeal." United States v. Gonzalez, 933 F.2d 417, 448 (7th Cir.1991) (quoting Garlington v....