*1 Appeals, United States Court of McMILLIAN, Before HEANEY and Eighth Circuit. HILL,* Judges, Circuit Senior Judge. District May Submitted Decided Nov. McMILLIAN, Judge. Circuit appeals judg-
Richard Lee Foster from a ment entered the District Court for the upon District of Minnesota verdict finding guilty conspiracy to commit physical violence in violation of 18 U.S.C. 371, 1951, conspiracy destroy proper- §§ ty by arson in violation of 18 U.S.C. §§ 844(i), felony solicitation to commit of 18 violation U.S.C. unlawful § possession of a destructive device viola- reversal, tion of 26 U.S.C. 5861. For § argues prosecutor’s that the miscon- deprived process right duct him of his due prejudicial to a fair trial.1 Because of the trial, prosecutorial misconduct at Foster’s reverse for a we and remand new trial. * Hill, Irving presses arguments The Honorable Senior United States 1. Foster also several other Judge for reversal which we need not address in view for the Central District of Califor- nia, disposition prosecutorial of our of his miscon- sitting by special designation. argument. duct *2 492 Savage Buckley and brought a stun gun and brass knuckles with them from began This dispute as a between Gatlinburg, they decided that Rochester, two in bar owners Minnesota. would be insufficient for pur- the task and 6, 1984, On June purchased Foster chased an ax handle and wrapped it with Hayes. part “Pub Bar” from Harold As of tape. evening 5th, On the of Savage June purchase agreement, Hayes agreed to Buckley and hid in a wooded area near the work at the Pub Bar six months to They 63 planned Club. abandoned their help manage
train Foster and him the busi- attack, however, because customers were Hayes ness. continued to work at the bar outside Hayes the bar when came out. February until of but when he ac- Buckley testified that he later observed quired option bar, buy competing an to a Savage possession in of an electronic discharged Hayes purchased him. “bug” grenades detector and six hand April the “63 bar in on Club” Rochester which he had come from believed Foster. Hayes 1985. testified that Foster an- was attempt After the mug Hayes failed to gry him purchase with about the of the 63 5th, June Savage Buckley and decided not Club bar because Foster had believed that try again to and returned with understanding compete. had an not to mother, and Smith Savage’s to home of Knoxville, Savage, Muriel in Tennessee. Meanwhile, Gatlinburg, Tennessee, aptly Savage placed named Richard an Telephone records introduced at trial magazine ad in phone Soldier Fortune which placed showed that calls were from year pro- Savage’s read: “GUN FOR HIRE: 37 old Muriel home to Foster’s home on 9, 16, mercenary jobs. Buckley fessional June and 19. desires Vietnam testified that early late very private. July Discrete June or of 1985 Veteran. and Bod- he and Savage courier, returned to yguard, pur- Rochester for the special and other skills. pose blowing up building. Upon a jobs Savage All arriv- considered.” lived Gat- ing town, Savage Buckley and met linburg girlfriend, with his Deborah Mat- Foster at the Buckley Pub Bar. testified tingly. Mattingly testified that she re- that Foster then building described the to telephone Savage early ceived a call for up supply blown as the house of a person June of 1985 from a whose voice poultry company owned William she later came to know as Foster’s. Short- Jr., Keough, who was business thereafter, ly Savage, his associate William supplying supply exotic bird feathers. The Buckley, Mattingly, and a woman named Fertile, house was located Iowa.3 Buck- Rochester, Linda Smith traveled to Minne- ley said that Foster wished to cause Savage group sota. The arrived in Roch- Keough business, go to out of Buckley and 3rd, ester on June and met with Foster that sensed bombing reason for the evening. Buckley testified that Foster de- drug-related. Keough testified that put Hayes2 sired to out of business and Foster had a to supply motive bomb his requested Savage Buckley mug and to Keough house because owed Foster Hayes way appear in a as to like a random $3,000.00 prior dealings. due to cocaine robbery and legs. to break his Foster was Buckley agreed pay testified that Foster to Savage pay Buckley to with an elec- $1,500.00 them bombing. for the “bug” tronic detector and a number of grenades. Savage, hand Buckley, and Fos- Buckley After assembled materials for a ter then drove over to the 63 bomb, Club and Savage again he and met with Fos- surveyed the mugging area where the ter. brought This time Foster a man to occur. him, named John Jimenez with who was name, Buckley Hayes by however, 4.Buckley, did not mention identify was able to this however, suggested until it was name, “John,” to him in a only by man his first until the question posed by prosecutor. prosecutor identified "John” as John Jimenez in a did not mention the location of the house, however, supply suggested until it was question posed by prosecutor. Savage Buckley Savage telephone, travel to Iowa with over Foster and building destroyed. out the to be point Jackson decided retrieve the bomb. Fos- evening Savage Jimenez, drove That Jimenez ter contacted who drove Jackson farm, Buckley Keough’s poultry where to the 63 over Club where Jackson re- Buckley placed the Savage and bomb trieved the bomb. timer. The three men then forty minute following day, August *3 they met Fos- returned to Rochester where purchased Jackson materials to reconstruct approximately 4:00 a.m. The bomb
ter at bomb, placed the he which and Jimenez destroyed and most exploded on schedule evening. the 63 that Club The two men supply house. exploded, watched to see if the it bomb evening Savage following The and Buck- detonated, partially only cracking glass the complete the 68 Club to ley returned to re- door the Club. The two men then mug Hayes. They earlier contract to their the remains trieved of the bomb. Not to be however, attack, Hayes when called off the discouraged, the arsonists con- would-be bearing pistol a and emerged from the club following day, structed a third the bomb person shotgun. accompanied by a with August 12, evening 1985. That Jackson Savage Buckley left the area near As and placed garage the bomb located under bar, stopped ques- Hayes’ they were and following morning the 63 Club. Jime- by policeman. After tioned a Rochester reported nez that not the bomb had deto- Buckley im- being questioned, Savage and nated, and Jackson returned to Tennessee. mediately returned to Knoxville. by This bomb was discovered the Rochester police telephone that afternoon. calls between After several Foster, Savage returned to Savage and 16, 1986, On December Foster was 10, 1985, August Rochester on with Buck- eight along in an count indictment ley and a man named Michael Jackson. Savage and Jimenez. Foster was Savage seeing had after his ad met Jackson beginning April individually tried on Fortune magazine. Buckley Soldier of 1,1987, May and on the returned they met Jackson when worked on a finding guilty a verdict Foster on all seven Marietta, Savage Georgia, in job for Foster counts of the indictment which they which bombed a car with two hand charged. The district court sentenced grenades. Buckley testified that re- years to incarceration for twelve Foster the third time for the turned Rochester appeal and this followed. bombing purpose of the 63 Club for Foster. Rochester, Upon arriving Buckley pur- II necessary the material for con- chased prosecuto- Foster raises five varieties structing During assembly of a bomb. (1) knowing rial misconduct: room, in the three men’s motel bomb (2) testimony, misrepresentation gave Savage Foster arrived and an Uzi (3) improperly sug- immunity, of witness gun magazines. machine and two Jackson (4) improper remarks gestive questioning, Savage Foster that testified that told Jack- (5) closing argument, the failure to bodyguard son serve as Foster’s would exculpa- material turn over to the defense reprisals by Hayes. Fos- protect him from motel, tory evidence. We need consider Savage, then left the Buck- ter points first of these because we are two to the 63 ley and Jackson went Club require they by that themselves convinced placed the bomb there after club a new trial. closed. government evidence
Savage
traveled to Louis-
The critical
testimony
of his
ville, Kentucky,
night,
that
while
at Foster’s trial was
Jackson,
Buckley,
and Mat-
co-conspirators,
Foster. Later
remained in Rochester with
tingly.
The defense evidence centered
evening
Foster and Jackson went
flatly denied
testimony,
had Foster’s own
which
the 63 Club and learned that the bomb
government
gone
spoke with much of the
not
off. After Foster
ques-
argues
witnesses. The
down to a
case boiled
failure of the
prosecutor
Mattingly
to correct
and Buck
of the witnesses.
misleading
ley’s
false and
re
In exchange
cooperation,
for their
Mat-
garding
agreements
govern
their
with the
tingly, Buckley, and Jackson were all
knowing
ment amounted to the
use of false
granted
immunity.
various forms of
On
testimony by
and violated
April 8, 1986,
government agreed
process right
his due
to a fair trial. Our
coopera-
for Mr. Jackson’s
“[i]n
analysis
argument
begin
of this
must
tion,
prosecuted
he
will not be
the Dis-
Illinois,
Napue v.
360 U.S.
79 S.Ct.
part
trict of Minnesota for his
in the crimes
(1959).
prosecuted activity as a result of his in believe that the witness would have an Buckley responded: Minnesota. “There testifying against interest in the defendant. promises have been prose- no at all.” The The Court maintained that this did cutor what attempt Buckley’s made no to refresh was otherwise a tainted trial “turn[ ] 270, Id. at into a fair one.” recollection 79 S.Ct. at promised that he had been immunity cooperation. for his promise
The prosecute not to Napue in Giglio v. Unit reaffirmed Minnesota in States, cooperation return for his ed 405 U.S. 92 S.Ct. 31 fully elicited. (1972), govern- L.Ed.2d 104 where the
495
falsely
resting essentially
testified
that he
ter.
In a case
key
ment’s
witness
promises
witnesses,
in return for his
had received no
the failure to
prosecutor
failed to cor-
cooperation.
jury
promises
inform
made to
reversed,
rect this
and the Court
prejudicial.
the witnesses was
reasoning that under these circumstances
not, however, ground
We need
re
required if ‘the false testi-
new trial is
“[a]
solely on
prosecu
versal
the basis of the
any
likelihood
mony could ...
reasonable
”
tor’s failure to
correct
witnesses’
judgment
jury.’
have affected the
Here,
deliberations,
testimony.
during its
(quoting Napue,
at
Id. at
92 S.Ct.
jury
question
submitted a
to the district
1178).
79 S.Ct. at
U.S.
asking
Jackson,
court
Buckley,
whether
applied
Napue/Giglio
rule
We
granted
immunity
had been
Bigeleisen,
[t]he
promises
prosecutor,
duty
and that
arises
extent. These
were all reflected
the
file,
appears.
by
prosecutor’s
the false evidence
letters in the
and she
when
is
with the awareness of them.
_
The fact
that defense counsel was also
Although
against Bigeleis-
the case
failed
aware of the letters but
to correct
strong,
say
en was
we are unable to
that
prosecutor’s misrepresentation is of no
the
there
likelihood that the
is
reasonable
consequence.
pros-
This did not
the
relieve
misleading
and the
clos-
overriding duty
of her
of candor to
ecutor
ing argument
have affected the
could
justice
and to seek
rather than
the
judgment
jury.
of the
convictions.
omitted).
(citations
and footnote
Id. at
prosecutor’s fail-
In
with the
combination
are
Napue, Giglio,
Bigeleisen
testimony by
ure to correct the false
Mat-
directly applicable
Buckley and Mat-
here.
regard to immuni-
tingly and
promises had
tingly testified that no
been
imagine
misrepre-
ty, it is difficult to
how a
for their testi
made to them
attorney
by
of fact
an
could have
sentation
false,
mony.
and the
This was
prejudicial. The
rested es-
more
case
been
duty
her
to correct
the false
breached
sentially
of the witnesses.
hoods.
jury
clearly
was
concerned about
required
if
Giglio,
Under
a new trial
might
possibility that
three witnesses
any
“in
judgment
jury
of the
could
testify falsely;
have had a motive to
likelihood have
affected.”
reasonable
[been]
jury specifically asked whether these three
facts, required bring out the under-
standing concerning immunity. agree major- also unable to am
ity’s of the events involved discussion concerning jury’s question
answering the commenced.
immunity after deliberations GUNDERSON, view, majority opinion mischarac- my Melford W. It is Plaintiff/Appellee, record as to the matter. terizes the in from the true that when the note came question to court addressed a jury, TERM & CO. LONG W.R. GRACE counsel) asking (apparently counsel both PLAN, Defen DISABILITY INCOME respect position was what counsel’s dant/Appellant. should be answered. how No. 88-5195-SD. prosecu- opinion asserts that the majority an- responded by suggesting that the tor Appeals, United Court States “No, they say, have swer should Eighth Circuit. granted immunity”. did so Dec. defense Submitted answer the after counsel had answered the court’s 3,May Decided asking the court to inform by categorically immunity granted to jury, “There is no words, defense counsel them.” In other the court
suggested the answer which