U.S. v. Sanfilippo, 76-4170
| Decision Date | 05 December 1977 |
| Docket Number | No. 76-4170,76-4170 |
| Citation | 564 F.2d 176 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph James SANFILIPPO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard M. Gale, Michael A. Masin, Miami, Fla., for defendant-appellant.
Jack V. Eskenazi, U. S. Atty., Michael P. Sullivan, James E. McDonald, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, and RONEY and FAY, Circuit Judges.
Joseph James Sanfilippo's conspiracy, possession, and distribution convictions grew out of a single cocaine transaction involving two other defendants. One defendant was acquitted. The other defendant entered a bargained for guilty plea, and then testified against Sanfilippo. Because the prosecutor allowed that testimony to go to the jury upon a misrepresentation as to the substance of the plea bargain, the truth of which would be material to credibility of the witness, we reverse.
The facts pertinent to this appeal concern the conduct of the trial. Pursuant to a standing discovery order, the Government advised Sanfilippo's counsel by letter prior to trial: "Modesto Mori will be a witness for the Government and in return he will not be prosecuted in the Ellswick case; the Government will make all cooperation known to Judge Atkins at the time of Mori's sentencing; he will not be filed against as a second offender."
On direct examination of Mori, the prosecutor brought out Mori's prior state convictions for conspiracy to commit murder and for dealing in cocaine. Mori also testified on direct examination that the Government had agreed to make his cooperation in this case known to the judge and that he had already been sentenced to 18 months imprisonment.
On cross-examination, the attorney for the codefendant futilely attempted to elicit the terms of the prosecution's promise to dismiss all but one count in this case and not to prosecute him in the Ellswick case:
Q And as part of the situation here, you agreed to cooperate with the government in exchange for certain promises made by them, isn't that correct?
A The only promise by the government was that the judge would be made aware of my cooperation.
Q Mr. Mori, the only promise was that your cooperation would be made known to this Court; is that what you're telling us, sir?
A Yes, sir.
Q Well, didn't the government promise you that they would dismiss the remaining counts against you?
A Well they said they were going to prosecute on this one count.
Q Didn't they tell you that, that they were going to dismiss the remaining counts?
A I was aware of that not two months before the trial.
Q Didn't the government also say that you would not be treated as a second offender, meaning that your penalties would be doubled?
A They said that they would not file a second offender charge, yes sir.
Q And didn't the government also say that you would not be indicted in the Ellswick case which involves over one thousand pounds of marijuana?
A I have not been indicted on that, but I haven't discussed it with the agents.
Q Didn't the United States Attorney promise that as part of the plea agreement that you would not be indicted in that case?
A I was informed that I haven't been indicted in that case, but I haven't discussed that.
Q As part of the plea agreement, didn't Mr. Ferguson state that you would not be indicted in that case?
A If I give you any definite answer, put a stress on anything, I would not be telling it to the best of my recollection, let me put it that way. I let my attorney handle it.
Q Well that is what Mr. Ferguson has told us.
A I don't believe you want me to tell you something that I really can't recall and be positive about.
Further attempts by defense counsel to elicit the Government's promise not to prosecute in the Ellswick case proved equally futile.
The prosecution knew that Mori's testimony regarding the terms of his plea bargain was false in at least two respects first, Mori had in fact been promised immunity in the Ellswick case in return for his testimony against defendants Sanfilippo and Davis, and second, negotiations with the prosecutor regarding the plea bargain had been handled directly by Mori, not by his attorney. Yet the prosecutor stood silent.
Due process is violated when the prosecutor, although not soliciting false evidence from a Government witness, allows it to stand uncorrected when it appears. That the false testimony goes only to the credibility of the witness does not weaken this rule. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In these cases the prosecutor had failed to disclose prior to trial information which would have revealed to the defense that the Government's witness was testifying falsely. Here, weeks before trial, the prosecutor satisfied his obligation under Giglio to fully disclose the terms of the plea bargain. See Giglio v. United States, supra. The purpose of disclosing the terms of a plea bargain is to furnish defense counsel with information which will allow him to attack the credibility of the witness. The defendant gains nothing, however, by knowing that the Government's witness has a personal interest in testifying unless h...
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