Warren GARRISON, Petitioner-Appellee, v. Ross MAGGIO, Jr., acting warden, Respondent-Appellant.
No. 75-2798
United States Court of Appeals, Fifth Circuit
Oct. 22, 1976
Rehearing and Rehearing En Banc Denied Dec. 2, 1976
540 F.2d 1271
The following facts concerning this contractual arrangement were not revealed to the shareholders:
- In return for its services, the professional corporation was guaranteed $208,500 per year.
- Medfield provided the group with all necessary expendable and non-expendable equipment, supplies, furniture and fixtures, offices and laboratories, and all technologists, technical aides, secretaries, clerks and other non-medical employees.
- Medfield was responsible for maintenance and utilities.
- The members of the professional corporation were further permitted to engage in outside consultation and teaching.
We agree with the district court that neither the true extent of the economic benefit conferred on Dr. Willey nor its concomitant cost to the corporation was fully disclosed.
V. Disclosure of the sale of major assets
[REDACTED] Medfield did not reveal in its proxy materials that it had been attempting to sell two nursing homes. In fact the materials stated that Medfield was hopeful that the profitability of these two major facilities would increase.
Medfield urges that these attempts to sell need not be disclosed because neither the proxy rules nor Florida law requires shareholder approval of the sale of these facilities. This misses the issue, which is not stockholder consent to a sale but disclosure of matters important to stockholders in voting at the annual meeting.
VI. Impugning the character of a Committee nominee
Medfield disseminated a letter pointing out the involvement of a Committee nominee in an unrelated patent infringement suit. The letter quoted from a lower court opinion that described the person as having infringed upon the patent of another. The case had been reversed on appeal and eventually settled. The settlement expressly avoided an admission of liability.
The district court found that the reference in the letter implied that the nominee was of bad moral character because he was a patent infringer. We affirm this point on reasoning contained in the opinion of the district court. CCH Fed.Sec.L.Rep. 95,013 at 97,543 (M.D.Fla.1975).
As modified, we AFFIRM.
Joseph B. Tosterud, Jr., William Brockman, Asst. Dist. Attys., New Orleans, La., for respondent-appellant.
Before WISDOM, COLEMAN and GEE, Circuit Judges.
GEE, Circuit Judge:
Warren Garrison is serving a 99-year sentence in Louisiana on a 1968 conviction for armed robbery. After exhausting his state remedies, Garrison filed this federal habeas corpus action. Looking simply to the record in the state proceedings, the district court granted relief on the theory that the prosecutor‘s failure to provide Garrison with certain material violated the requirements of due process enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). We reverse.
The material which was not disclosed to the defense was a supplementary police report which summarizes an interview between an investigating officer and the armed robbery victim. This report describes the first of the robbers as being “about 6‘1“,” having a “slender build,” and wearing a white shirt and khaki pants. It also indicates that this robber beat the victim with a shovel. The other robber is described as “shorter” and “stocky.” At trial, the victim made a positive identification of Garrison. His description of Garrison‘s clothing and his role in the robbery correspond to that attributed to the first suspect in the police report. But Garrison is about
Garrison‘s trial counsel was unaware of the report, and he did not seek pretrial discovery or request Brady material.1 The report was found in the official police department records when they became public after the conviction, but the prosecutor, testifying in the state habeas action, did not remember whether the report had been in his trial file. We assume without deciding that the prosecutor actually possessed and read the report before Garrison‘s trial.2
[REDACTED] Our analysis commences with the recognition that the district court‘s assumption that Brady and Giglio are applicable here is erroneous. The former involves prosecutorial suppression, after specific request by the defense, of evidence favorable to the defense on either guilt or punishment, while the latter involves prosecutorial tolerance of perjured testimony. It is recent Supreme Court teaching that the elements of the potential due-process violation arising from prosecutorial nondisclosure vary with the factual circumstances. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Agurs employs three distinct categories of cases to delineate the due process issues in this area; Giglio falls in the first analytic category, Brady in the second, and Agurs itself is the leading case in the third category. Id.
Despite Garrison‘s citation of Giglio, he does not seriously argue that this case involves a knowing failure to correct false testimony, and we do not consider his potential Giglio claim to be before us on this appeal. There being no specific defense request for the undisclosed evidence, this case therefore falls in the same category as Agurs—it involves a prosecutor‘s failure voluntarily to disclose evidence favorable to the defense.
[REDACTED] Agurs states that such a nondisclosure is a constitutional error only when the undisclosed evidence creates a reasonable doubt about defendant‘s guilt which did not otherwise exist. Id.3 Although the prosecutor‘s conduct here corresponds to that in Agurs, the factual differences in the cases justify application of a more stringent standard. A case such as this one, where the undisclosed evi-
[REDACTED] By this standard, Garrison‘s cause must fail. But even under the reasonable-doubt standard of Agurs, the supplementary report does not pass the test. The contents of the report are not in themselves exculpatory. The report merely indicates that the victim may have previously offered a somewhat different version of the crime. In view of the facts that the victim‘s trial identification was unequivocal and that the report summarizes an interview conducted while the victim was still in the hospital recovering from severe injuries, the report does not raise a reasonable doubt about Garrison‘s guilt.5
[REDACTED] As the Supreme Court noted, the ultimate issue is whether the prosecutor‘s omission is of sufficient significance to result in a denial of the defendant‘s right to a fair trial. United States v. Agurs, supra. The inevitable uncertainty about the impact of impeachment matter means that such evidence can very rarely clear the bar, and consequently a prosecutor is seldom required to volunteer it to the defense.
REVERSED.
WISDOM, Circuit Judge (dissenting):
I respectfully dissent.
First, I disagree with the strict standard of materiality the majority promulgates for determining whether the prosecution‘s nondisclosure of “purely impeaching” evidence requires a new trial. Second, I cannot agree that a police report, in which the victim and sole eyewitness of the crime describes the robber who beat him in terms drastically inconsistent with his testimony at trial, is “purely impeaching” evidence. Finally, I believe that under the proper materiality standard, the petitioner in this case is entitled to relief.
I.
In United States v. Agurs, 1976, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, the
[T]he fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered by a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State‘s possession as when it was found in a neutral source, there would be no special significance to the prosecutor‘s obligation to serve the cause of justice.
Id. at 111 (footnote omitted).
Although the Court in Agurs spoke only to the nondisclosure of exculpatory evidence, the above reasoning loses none of its cogency when applied to the nondisclosure of impeaching evidence. In its decisions dealing with the prosecution‘s duty with respect to evidence favorable to the defense, the Supreme Court has repeatedly recognized that critical impeachment evidence may play as large a role in determining the outcome of a trial as exculpatory evidence. Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Giles v. Maryland, 1967, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737; Napue v. Illinois, 1959, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. See Note, Materiality and Defense Requests: Aids in Defining the Prosecutor‘s Duty of Disclosure, 59 Iowa L.Rev. 432, 438 (1973). In Giglio, a promise of immunity to the government‘s key witness was not disclosed at trial. Even though the Assistant United States Attorney trying the case was unaware of the promise, the Court reversed the defendant‘s conviction. The Court observed:
Brady v. Maryland held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.” . . . When the “reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of evidence affecting credibility falls within this general rule.
It is therefore unnecessary and unwise to impose a harsher standard of materiality on impeaching evidence than the Supreme Court applied to exculpatory evidence in Agurs. The Agurs standard is itself a strict one. I cannot acquiesce in the majority‘s view that due process is not violated where the prosecution fails to disclose evidence within its control2 that “creates a reasonable doubt that did not otherwise exist” simply because the evidence is deemed “impeaching” rather than “exculpatory“. The severity of the majority‘s materiality standard is demonstrated by the denial of relief here; the elusive nature of the distinction between impeaching and exculpatory evidence, upon which this stricter standard is premised, is also illustrated by the facts in this case.
II.
On December 2, 1967, two men robbed James H. Pfister, a real estate rental agent, while he was working in his company‘s office in New Orleans. One of the robbers severely beat Pfister with a shovel. In a police report made immediately following the crime, Pfister described the robber who beat him as 6‘1” tall and of slender build. This description is glaringly inconsistent with Pfister‘s trial testimony that Garrison, who is 5‘5” tall and stocky in build, was the robber who administered the beating. It was largely, if not solely, on the basis of Pfister‘s positive identification of Garrison at trial that Garrison was convicted of armed robbery and sentenced to 99 years in prison.3
The majority characterizes the discrepancy in Pfister‘s descriptions of his assailant as “purely impeaching evidence“. I find this characterization untenable, given that Garrison‘s sole defense was an alibi. At trial, he testified that he was asleep in his sister‘s home during the entire morning the robbery took place. His story was corroborated by the testimony of his sister and her two daughters, all of whom testified that the defendant did not leave the house that day.4 The undisclosed version of the robbery that Pfister gave in the police report certainly lends credence to Garrison‘s con-
The notion that a witness‘s prior inconsistent statements may constitute substantive exculpatory evidence, in addition to being useful for impeachment, is not a new one. In Giles v. Maryland, 1967, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737, a suppressed police report contained statements that were inconsistent with the prosecutrix‘s testimony at trial concerning whether a certain defendant had raped her. Justice Brennan, speaking for a plurality of the Court, found that this evidence went “not only to the credibility of the State‘s witnesses, but also to the issue at trial whether [the defendant] had raped the girl“. 386 U.S. at 77. See also Alcorta v. Texas, 355 U.S. 28, 31-32, 78 S.Ct. 103, 105, 2 L.Ed.2d 9, 12. This circuit reached a similar conclusion in Davis v. Heyd, 5 Cir. 1973, 479 F.2d 446. Davis involved the nondisclosure of a statement given by one of the witnesses to a shooting, shortly after the event, that contradicted his trial testimony with respect to when the defendant drew his gun. We found that the prosecution‘s failure to disclose the prior statement required a reversal of the conviction because the statement “specifically corroborated [the defendant‘s] defense of accidental discharge and specifically contradicted the [prosecution witness‘s] trial version of intentional killing in the heat of a struggle“. 479 F.2d at 453.
Even if the prosecution‘s duty to disclose impeaching evidence should be governed by a more stringent materiality standard than its obligation to reveal exculpatory matter, I cannot agree that the stricter standard should be applied in a case, such as this one, where the undisclosed evidence is both exculpatory and impeaching. Characterization problems similar to the one in this case will undoubtedly arise whenever the evidence undisclosed by the prosecution involves a statement by an important prosecution witness that conflicts with his testimony at trial. Thus, the distinction the majority draws between exculpatory and impeaching evidence, for purposes of prosecutorial disclosure, is not only unnecessary; it is largely unworkable.
III.
In determining whether “the omitted evidence creates a reasonable doubt that did not otherwise exist“—the standard of materiality that I believe should be applied in this case—the Court in Agurs insisted that “the omission must be evaluated in the context of the entire record“. 427 U.S. at 112. This is precisely what the district judge did in reaching the conclusion that a reversal of Garrison‘s conviction was necessary.
Even under a stringent standard of materiality, the victim‘s inconsistent description of the robbers contained in the police report is so pertinent to his credibility at trial that its nondisclosure requires a reversal of the petitioner‘s conviction. The only positive identification of Garrison was made by Pfister, the victim of the armed robbery. Pfister‘s description of his assailant made the day following the crime and contained in the police report is of a man some 8” taller than Garrison. Without the benefit of this prior inconsistent description, the defense was unable to successfully impeach Pfister‘s testimony, which was crucial to the State‘s case.
. . . It is enough to say that the two descriptions, inconsistent on their face, would provide the defense counsel with ample grounds to attempt to impeach Pfister‘s testimony. Such impeachment, if successful, would have been fatal to the State‘s case. (Emphasis added.)
These findings are more than amply supported by the record and should not be disturbed.5
The Court today formulates a severe materiality standard to govern the prosecution‘s duty to reveal impeaching evidence, and denies the petitioner here relief, because it fears that “forcing disclosure of impeachment matter may actually inhibit a full presentation to the trier of fact“. 540 F.2d at 1274. Even if this were true, the concern is misplaced in a case, such as this one, where the impeaching evidence comes into the prosecution‘s hands in the normal course of its investigation, and goes solely to the witness‘s recollection and perception of events rather than to his honesty and veracity. To the extent that the Court‘s fear is well founded, the materiality standard announced by the Supreme Court in Agurs is strict enough to combat the problem. No need exists to impose on prosecutors, the district courts, and ourselves the burden of drawing the often ethereal distinction between exculpatory and impeaching evidence. Under the Agurs materiality standard, Garrison is clearly entitled to the relief granted by the district court. I would therefore affirm.
JOHN MINOR WISDOM
UNITED STATES CIRCUIT JUDGE
Notes
Q. Now, do you recall the description of the individual who put the gun on you, the one that held it in front of you, that stood in front of you? What was his physical description in general? Did you talk to the Police?
A. I talked to the Police, yes.
Q. What description did you give?
A. On the way to the hospital they were asking me as I was riding. They were asking me then, you know.
Q. What description did you give the Police?
A. I told the Police that he was—
Q. Which is he, which one?
A. Right here. I told them about the other fellow being about 5’ 10” or 5’ 11“, and that the other fellow was shorter, that I imagined that he was about 5’ 4” or 5’ 5“, or something like that. (Emphasis added.) Record on Appeal, Vol. I, pp. 201-202. Because of the unclarity of Mr. Pfister‘s testimony, it is impossible to say that he was contradicting his earlier statements to the police. Consequently, it cannot fairly be said that the prosecution knew, or should have known, about any inaccuracies in Mr. Pfister‘s trial testimony.
Q. Does that inconsistency [in Pfister‘s descriptions of his assailant] support your case?
A. Would it have supported it; no. It would have been contradictory, the inconsistency about what the victim allegedly stated to officer Schneider. It was—Ran [sic] completely counter to what was testified to at the trial, and what Mr. Pfister indicated the facts were when I saw him. . . .
Q. Mr. Marcal, as a prosecutor do you consider the inconsistency there to be material?
A. Well, if it would have been directly brought to my attention, I think it would have been material; it would have been very material had it been brought to my attention.