Elroy A. Phillips v. United States
2017 U.S. App. LEXIS 3253
| 11th Cir. | 2017Background
- Phillips was tried and convicted on multiple counts related to crack/cocaine distribution and possession of ammunition; some counts later vacated and resentenced on appeal.
- Officer Michael Ghent testified about an April 6, 2001 undercover buy; post-trial the government discovered Ghent had lied and engaged in serious misconduct during the relevant period.
- Evidence from a search of Phillips’s home (ammunition, paraphernalia) derived from a warrant application that included Ghent’s statements; Ghent did not participate in the execution of the search.
- The government joined Phillips’s § 2255 motion as to several counts after confirming Ghent’s false testimony and conceded Count 1 (conspiracy to distribute crack) should be vacated.
- The district court excised Ghent’s false statements from the warrant affidavit, found independent probable cause remained for the search, denied relief as to ammunition counts (Counts 14 & 17), and held Phillips abandoned a challenge to Count 11 (possession of powder cocaine).
- The Eleventh Circuit affirmed convictions on Counts 14 and 17 and Count 11 abandonment, vacated Count 1 based on Giglio/Brecht materiality, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ghent’s perjured trial testimony required vacatur of Count 1 (conspiracy) | Ghent’s false testimony was material and the prosecution knew or should have known, violating Giglio/Brady | Government conceded Ghent lied but argued harmlessness could be shown for other counts; ultimately conceded Count 1 should be vacated | Vacated Count 1; government conceded it could not meet Brecht harmlessness standard |
| Whether warrant and search were tainted by Ghent’s false statements (Counts 14 & 17) | Search was tainted because affidavit relied on Ghent’s false undercover buy statements | Court should excise false portions per Franks and evaluate remaining affidavit; independent evidence provided probable cause | Affirmed convictions on Counts 14 & 17; court properly excised Ghent’s statements and found independent probable cause |
| Whether Count 11 challenge was preserved | Phillips argued error as to Count 11 | Government argued Phillips abandoned the claim in amended § 2255 filings | Affirmed: Phillips abandoned challenge to Count 11 by not asserting it in amended motion |
| Standard and application of harmless-error in collateral review after Giglio/Brady | Relief required if perjury had substantial and injurious effect on verdict under Brecht standard | Government bears burden to show error was harmless beyond a reasonable doubt on direct review and harmless under Brecht on collateral review | Applied Giglio/Agurs/Brecht: court used Brecht standard on collateral review and found grave doubt as to harmlessness for Count 1, requiring vacatur |
Key Cases Cited
- Agurs v. United States, 427 U.S. 97 (Supreme Court) (materiality standard for undisclosed evidence affecting verdict)
- Giglio v. United States, 405 U.S. 150 (Supreme Court) (prosecutorial use of perjured testimony violates due process)
- Brecht v. Abrahamson, 507 U.S. 619 (Supreme Court) (harmless-error standard for collateral review requires substantial and injurious effect)
- Franks v. Delaware, 438 U.S. 154 (Supreme Court) (inquiry and excision of false statements from warrant affidavits)
- O’Neal v. McAninch, 513 U.S. 432 (Supreme Court) (standard for deciding whether error substantially swayed jury)
- Ross v. United States, 289 F.3d 677 (11th Cir.) (applies Brecht on § 2255 collateral review)
- Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336 (11th Cir.) (prosecution team member’s false testimony imputed to government)
- In re Global Energies, LLC, 763 F.3d 1341 (11th Cir.) (ethical duty to remedy or correct known false testimony)