Alfоnzo Mason and Linda Faye Hawkins Smith appeal their convictions for conspiring to distribute crack cocaine. For the following reаsons, we vacate the appellants’ convictions and sentences and remand for a new trial.
I.
In the spring of 1999, the Madison Parish Sheriffs Office received a tip from a confidential informant that appellants Alfonzo Mason (“Mason”) and Linda Faye Hawkins Smith (“Smith”) were selling crack сocaine in Tallulah, Louisiana. Based on this information the sheriff began an investigation that allegedly involved several undercover purchases and drug seizures from Mason and Smith. The sheriffs office reported its findings to the United States Attorney for the Western District of Louisiana, and in September 2000, Mason and Smith were charged by a federal indictment with conspiring to distribute crack cocaine, distributing crack
The government’s primary witness at trial was James Dawson (“Dawson”), who emerged as a suspect during the sheriffs investigation when he was arrested with 3.9 grams of crack cocaine after leaving Mason’s motel room. Shortly after his arrest Dawson began to cooperate with the government. He informed the government that Mason and Smith had been dealing crack from Smith’s home; that Mason had transported a large amount оf crack from Las Vegas, Nevada to Tallulah; and that Melvin Cooper, now deceased, had helped Mason set up his distribution operation in Tallulah. Finally, Dawson admitted that he had purchased crack from Mason on the night of his arrest. After conveying this information Dawson entеred into a plea agreement with the government and agreed to testify against Mason and Smith at trial. Mason and Smith now ask us to vacate their convictions and sentences because Dawson falsely testified that he did not enter into a plea agreement with the government аnd the government failed to correct Dawson’s misrepresentation.
II.
The Due Process Clause of the Fourteenth Amendment forbids the government from knowingly using, or failing to correct, false testimony.
See Giglio v. United States,
Under direct examination by the government, Dawson stated thаt he had not entered into a plea agreement:
Q. And as a result of being arrested did you, have you entered into an agreement with the government?
A. No, sir.
This testimony was false and the government knew it. Dawson did in fact enter a plea bargain, and the same assistant United States Attorney who рrosecuted Mason and Smith signed the agreement. Since Mason and Smith have easily established the first two elements of their due process сlaim, we must turn to the question of whether Dawson’s false testimony was material.
The government contends that Dawson’s false statement was immateriаl because, viewing his testimony in its entirety, the essence of his plea agreement was revealed to the jury. On direct examination, Dawson testified:
Q. And as a result of being arrested did you, have you entered into an agreement with the government?
A. No, sir.
Q. You have not entered a plea of guilty?
A. I have entered a plea of guilty.
Q. And what do you expect from, and you agrеed to come here and testify, is that correct?
A. Yes, sir.
Q. And what did you agree to testify to?
A. Just the truth.
Q. And what do you expect for this?
A. Nothing but just telling the truth. I might get leniency or something.
Q. And what did, did anybody tell you anything about leniency that you might gеt?
A. Nobody made me no specific promises. Everybody I asked, they couldn’t promise me nothing.
The subject resurfaced on redirect:
Q. Mr. Dawson, you were told at all cost to tell the truth here today, were you not?
A. Yes, sir.
Q. And you were also told that no one could make any promises to you about what your sentence would bе?
A. No promises.
Q. Because only the judge could determine that?
A. Yes, sir.
Q. And you were told that any cooperation you give would be made known to the district attorney or the prosecutor, weren’t you?
A. Yes, sir.
In light of this tеstimony, the government submits that the jury knew that Dawson agreed to testify to “[j]ust the truth,” that he knew he “might get leniency or something,” and that “any cooperаtion [he] g[a]ve would be made known to the district attorney or the prosecutor.” However, the appellants point out that the signed plea agreement also grants Dawson use immunity for his testimony; provides that the “United States will advise the Court of any assistance provided by the Dеfendant”; and states that the “United States may, but shall not be required to, make a motion requesting the Court to depart from the sentencing range called for by the guidelines in the event he provides ‘substantial assistance.’” Contrary to the government’s position, we do not find that Dawson’s statements at trial conveyed all this information to the jury.
Even if Dawson did not fully describe the contents of his plea agreement, the government argues that because the agreement was available to the defense before trial, the appellants “cannot now claim that the gоvernment should have revealed the entire plea agreement to the jury but rather it was incumbent upon defense counsel to cross-еxamine the witness about his plea agreement.” However, although the government claims that all of its files were available to defensе counsel before trial, and there is no explanation why defense counsel did not avail himself of the opportunity to examine the files, there is no evidence that defense counsel actually saw the plea agreement. Furthermore, defense counsel’s failure to avail himself of the policy making the plea agreement available does not reheve the government of its affirmative responsibility to correct false testimony.
Finally, the government asserts that the district court’s instructions to the jury cured any error caused by Dawson’s misleading statement. Specifically, the government points to the caution in Fifth Circuit Pattern Instruction 1.08 that jurors should ask themselves whether a witness had a pеrsonal interest in the outcome of the case or a relationship with either the government or the defense. However, since the jury did not know that an executed plea agreement existed, we cannot say that it fully appreciated the relationship between the government and Dawson. Accordingly, the error caused by Dawson’s false statement was not remedied by the jury charge.
As a result of Dawson’s matеrial misrepresentation, the defense may have been prevented from effectively cross-examining the government’s most important infоrmant, and the jury was unable to properly evaluate Dawson’s testimony. By failing to correct the misrepresentation, we find that the governmеnt violated Mason and
III.
Because the government violated the appellants’ due process rights, we vacate Mason and Smith’s convictions and sentences and remand for a new trial.
VACATED AND REMANDED.