United States v. Peltier, Crim. No. C77-3003 (Civ. No. A3-82-60).

• Decision Date: 03 January 1983
• Docket Number: Crim. No. C77-3003 (Civ. No. A3-82-60).
• Citation: 553 F. Supp. 890
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Leonard PELTIER, Defendant/Petitioner.
• Court: U.S. District Court — District of South Dakota

553 F. Supp. 890

UNITED STATES of America, Plaintiff/Respondent, v. Leonard PELTIER, Defendant/Petitioner.

Crim. No. C77-3003 (Civ. No. A3-82-60).

United States District Court, D. North Dakota, Southeastern Division.

December 30, 1982.

As Amended January 3, 1983.

COPYRIGHT MATERIAL OMITTED

Rodney S. Webb, U.S. Atty., D.N.D., Fargo, N.D., Evan L. Hultman, U.S. Atty., N.D. Iowa, Cedar Rapids, Iowa, Richard Vosepka, Asst. U.S. Atty., D. Minn., Minneapolis, Minn., Lynn E. Crooks, Asst. U.S. Atty., D.N.D., Fargo, N.D., for plaintiff/respondent.

William M. Kunstler, New York City, Michael E. Tigar and John J. Privitera, Tigar, Buffone & Doyle, Washington, D.C., Bruce Ellison, Rapid City, S.D., for defendant/petitioner.

MEMORANDUM AND ORDER

BENSON, Chief Judge.

Petitioner Leonard Peltier has filed a motion to vacate judgment and for a new trial pursuant to 28 U.S.C. § 2255.¹ Petitioner Peltier, Robert Eugene Robideau, Darrell Dean Butler, and James Theodore Eagle were charged in a two count indictment with the murders of two Special Agents of the Federal Bureau of Investigation in violation of 18 U.S.C. §§ 2, 1111, and 1114. Robideau and Butler were jointly tried by a jury and were acquitted. The charges against Eagle were dismissed by the government. Subsequent to the Robideau-Butler trial, petitioner Peltier was tried by a jury, was convicted on both counts, and was sentenced to life imprisonment on each count, the sentences to run consecutively. The conviction was affirmed on appeal. United States v. Peltier, 585 F.2d 314 (8th Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979).

Petitioner, through counsel, filed the § 2255 motion at issue here on April 20, 1982. The matter was briefed extensively and came at issue on October 1. The motion was filed subsequent to the receipt by petitioner's counsel of documents from the government in a pending federal action filed under the Freedom of Information and Privacy Acts, 5 U.S.C. §§ 552 and 552a. Peltier v. Department of Justice, CA No. 79-2722 (D.D.C.). According to petitioner, this newly discovered evidence indicates "that the government engaged in deliberate deception of this Court and the jurors by the presentation of known false evidence and the suppression of exculpatory evidence in order to obtain a conviction." Petitioner's Motion to Vacate Judgment and for a New Trial at 1, Peltier v. United States, Crim. No. C77-3003 (Civil No. A3-82-60) (D.N.D. filed April 20, 1982). Petitioner claims that these actions by the government violated his fifth amendment right of due process of law and violated his sixth amendment right of confrontation and compulsory process.

Petitioner's Motion to Vacate Judgment and for a New Trial is based almost exclusively upon a claimed due process violation resulting from the alleged failure of the government to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The nondisclosure of Brady materials is cognizable in a section 2255 motion. Lindhorst v. United States, 658 F.2d 598, 601 n. 3 (8th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982); Houser v. United States, 508 F.2d 509, 517-18 (8th Cir.1974). Under Brady "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196. "Suppression" in the context of Brady material has been held to mean nondisclosure. Lindhorst v. United States, 658 F.2d at 605 n. 8, citing United States v. Agurs, 427 U.S. 97, 106-07, 96 S.Ct. 2392, 2398-99, 49 L.Ed.2d 342 (1976). See also Evans v. Janing, 489 F.2d 470, 475 (8th Cir.1973).

Petitioner specifically alleges nondisclosure of the following as Brady violations: (1) a memorandum indicating that tests matching the .223 shell casing found in the trunk of Agent Coler's car with Peltier's AR-15 rifle were conducted with negative results, and documents indicating that it is highly unlikely that the government's ballistics expert failed to study the .223 casing for several months; (2) FBI reports demonstrating the involvement of other vehicles in the incident, specifically a red pickup, a red Scout, a red jeep, and an orange and white pickup; (3) documents indicating that it would be difficult, if not impossible, for FBI Agent Frederick Coward, Jr., to have identified Peltier at the scene through a high power rifle scope, given the distance and weather conditions involved; (4) FBI teletype and memoranda indicating the existence of conflicting pathology reports; (5) material gathered by the FBI during its investigation inculpatory of several individuals not prosecuted for the deaths of the agents; and (6) documents suggesting that persons other than those identified to the jury were present at the scene during the confrontation.

In considering petitioner's contention that he is entitled to a new trial, the focus must be on the materiality, to either guilt or punishment, of the evidence alleged to have been suppressed. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court discussed the three quite different situations to which Brady arguably applies. Each involves the discovery after trial of information which had been known to the prosecution but unknown to the defense. In the first situation, "the undisclosed evidence demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known of the perjury." United States v. Agurs, 427 U.S. at 103, 96 S.Ct. at 2397 (footnote omitted). A conviction obtained by the knowing use of perjured testimony is considered by the Court to be "fundamentally unfair" and is to be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. (footnote omitted). As summarized in United States v. Runge, 593 F.2d 66, 73 (8th Cir.), cert. denied, 444 U.S. 849, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979):

Where the use of known perjury involves prosecutorial misconduct, it constitutes "corruption of the truth-seeking function of the trial process." The government may be responsible even if the prosecutor did not actually know the testimony was perjured, but should have known, or if he or she did not elicit false testimony, but allowed it to go uncorrected when it appeared. Even false testimony which merely impeaches a witness' credibility may require a new trial.

Id. (citations omitted). See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982). Petitioner argues that this standard of materiality should be applied to evidence of ballistic tests, other vehicles, and scope sighting, alleged to be newly discovered.

The second situation discussed in Agurs to which Brady applies is characterized by a pretrial request for specific evidence. United States v. Agurs, 427 U.S. at 104, 96 S.Ct. at 2397. The standard of materiality when a specific request has been made is whether "the suppressed evidence might have affected the outcome of the trial." Id. The Court noted that

although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.

Id. at 106, 96 S.Ct. at 2398. Petitioner argues that this standard of materiality should be applied to the evidence concerning the autopsy reports, Jimmy Eagle and other suspects.

The third situation to which Brady applies, according to the Agurs Court, is where exculpatory information is possessed by the prosecution but unknown to the defense attorney. In such cases the duty of the prosecutor is the same whether defense counsel makes a general request or no request at all. If the prosecutor fails to disclose the information and the omission is of sufficient significance to result in the denial of defendant's right to a fair trial the prosecutor will have violated his constitutional duty of disclosure. However, the mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial does not establish "materiality" in the constitutional sense. The reviewing court must evaluate the omission in the context of the entire record. If the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. Id. at 107-113, 96 S.Ct. at 2399-2402. Petitioner in this case does not appear to be relying on this "third situation" application of Brady.

I. PERJURED TESTIMONY

Petitioner has not demonstrated that the prosecution's case, especially with regard to the evidence of ballistics tests, other vehicles, or the scope sighting, included perjured testimony and that the prosecutor knew or should have known of the perjury.

A. Ballistics Testimony of Special Agent Hodge

Relying upon an alleged inconsistency between the trial testimony of Special Agent Evan Hodge, a specialist in the Firearms and Tool Marks Identification Unit of the Federal Bureau of Investigation (FBI), and a recently discovered FBI...