United States v. O'Keefe ( 1997 )

REVISED
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 96-31181
____________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
MICHAEL O’KEEFE, SR; ERIC SCHMIDT; JOHN
O’BRIEN; GARY BENNETT; PAUL SCHMITZ,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
November 11, 1997
Before WISDOM, JOLLY and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The United States appeals the district court’s order granting
a new trial and its denial of the government’s motions for
reconsideration of its order granting a new trial and to enforce
the recusal of Chief Judge Morey L. Sear following the convictions
of Michael O’Keefe, Sr., Eric Schmidt, John O’Brien, Gary Bennett,
and Paul Schmitz (collectively “O’Keefe”). We vacate the order
granting a new trial and remand to the district court to consider
O’Keefe’s remaining arguments, as yet unaddressed, for new trial.
We deny the government’s request to remand this case to a judge
outside the Eastern District of Louisiana.
I
We briefly outline the facts of this case insofar as they are
relevant to this appeal, largely concerning procedural matters.
O’Keefe operated the management company of Physicians National Risk
Retention Group (“PNRRG”), a Louisiana medical malpractice insurer,
and the other defendants were involved with the company in various
capacities. When PNRRG became insolvent and the state of Louisiana
moved to have it liquidated, the defendants arranged to have
Builders and Contractors Insurance, Limited (“BCI”), a Bahamian
corporation run by Charles Donaldson, act as a reinsurer. Various
assets of PNRRG were taken out of PNRRG’s estate to cover
liabilities and claims that were transferred to BCI, and put in the
trust account of O’Keefe’s law firm on behalf of BCI. Ultimately,
a large portion of these assets of PNRRG found their way into the
personal bank accounts of the defendants through a complex scheme
found by the jury to be fraudulent.
In a series of indictments listing differing factual bases
whose relevance we shall discuss later, a grand jury charged
O’Keefe and the other defendants with multiple crimes, including
conspiracy, wire fraud, mail fraud, and money laundering. The two
main government witnesses were Donaldson and Johnny Moore,
participants in the scheme. During pre-trial preparation, a
Federal Bureau of Investigation (“FBI”) 302 report1 was prepared
1
An FBI 302 report is a typed transcription of the notes
of an FBI agent’s interview with a witness, usually prepared for
testimony of a witness who may be presented at trial.
-2-
from the notes of FBI Special Agent Phillips based on a telephone
interview between Donaldson, his attorney, government prosecutors,
Phillips and other law enforcement personnel. According to the
transcribed FBI 302 report of this interview, someone stated that
“O’Keefe suggested that BCI’s shareholders meeting minutes be
altered to make it appear that Donaldson had authority to enter
into the PNRRG/BCI contract” (the “minutes”). It is unclear who
made this statement, but when Donaldson later pled guilty in the
U.S. District Court for the Middle District of Louisiana to one
count of mail fraud in exchange for his testimony in this case, the
prosecutors incorporated this statement into the factual basis of
the guilty plea in such a way as to make it appear that Donaldson
made the statement.
During the trial against O’Keefe before Chief Judge Sear and
immediately prior to Donaldson’s direct testimony, the government
provided a copy of the FBI 302 report to the defense, pursuant to
the Jencks Act, 18 U.S.C. § 3500 et. seq. On direct questioning,
the government did not ask any questions concerning the minutes,
but when one of the defense attorneys questioned Donaldson about
the minutes on cross-examination, Donaldson admitted to accusing
O’Keefe falsely of participating in the alteration of the minutes.2
2
The following colloquy occurred between Simmons, the
attorney for O’Keefe, and Donaldson, on cross-examination:
Q: Did you tell anyone that Mr. O’Keefe had created those
minutes of December ‘88 by the addition of the words
“five years thereafter.”
A: I don’t recall. I--I know that I admitted I said
that I created--I put them in myself.
-3-
Q: That’s not my--my question. Let me rephrase it.
A: Did--did I tell anyone that he suggested that? I-I
can’t recall if I did.
* * *
Q: Since you’ve started cooperating with the Government,
when you’re supposed to be truthfully, have you ever told
anyone that Mr. O’Keefe created those minutes of December
1988? And by create I mean adding the five years
thereafter?
A: I don’t think so. I may have.
Q: You may have?
A: Yes, I can’t recall. Was that a clear answer? I
can’t recall.
Q: You’re suggesting that you may have accused him of
creating documents that you created?
A: I said I can’t recall.
* * *
Q: Isn’t it a fact, Mr. Donaldson, that you told the
agent that Mr. O’Keefe suggested that the minutes be
altered?
A: (No response)
Q: Didn’t you tell the agents that?
A: No, I did not.
Q: Your testimony under oath is that on March 3, 1995,
you did not tell Agent Susan Phillips that Mr. O’Keefe
suggested that the BCI shareholders minutes be altered to
make it appear that Donaldson had authority to enter into
the contract; did you make that statement to the F.B.I.?
A: At--I--I did, yes.
Q: And that was a false statement, wasn’t it sir?
A: It was a false statement.
Q: And you lied to the FBI, did you not?
A: Yes I did.
Based on this exchange, the court found that Donaldson uttered four
possible falsehoods. First, in court on cross-examination,
Donaldson falsely accused O’Keefe of participating in altering the
minutes. Second, in his guilty plea, Donaldson agreed with the
factual basis of the plea, which contained the statement falsely
suggesting that O’Keefe participated in the alteration of the
-4-
In a sidebar conference that followed, the government denied that
Donaldson had ever accused O’Keefe of helping to alter the minutes
and stated that the FBI 302 report was mistaken if it attributed
the statement to Donaldson, an explanation that the court rejected.
On redirect, the government half-heartedly attempted to bolster
Donaldson’s credibility. After Donaldson left the stand, defense
counsel moved to strike the testimony of Donaldson, which the court
refused to do. In closing arguments, the defense highlighted
Donaldson’s impeachment, and the court included a strong statement
admonishing the jury to consider carefully the credibility of
witnesses in its jury instructions. Despite Donaldson’s testimony
and impeachment, the jury convicted O’Keefe and his co-defendants.
After trial, the defense made various post-trial motions,
including a motion for new trial. Chief Judge Sear conducted a
hearing on the motions at which the parties presented legal
arguments but no evidence. The court granted the new trial motion
because it found that Donaldson falsely accused O’Keefe of
participating in the alteration of the minutes, and that the
government knew about the falsehood because the two prosecutors
gave inconsistent answers as to whether they learned of the
falsehood prior to trial. The court also found that the long,
drawn-out pauses before Donaldson answered the defense counsel’s
minutes. Third, if Donaldson did not previously falsely accuse
O’Keefe of participating in the alteration of the minutes, then he
uttered a falsehood when he admitted in court that he had accused
O’Keefe of participating in the alteration of the minutes.
Finally, the court found that Donaldson uttered a falsehood when he
stated that the government did not know, prior to trial, that he
had lied concerning altering the minutes.
-5-
questions in the colloquy set out above supported an inference that
the government knew about Donaldson’s false accusation prior to
trial. Several other factors reinforced the court’s finding that
Donaldson’s false testimony warranted a new trial. First, the
court found that the government’s release of the FBI 302 reports to
the defense complied with the Jencks Act, but did not comply with
the government’s obligations under Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Second, another key
government witness, Moore, often changed his testimony, which
became significant in light of Donaldson’s false testimony. Third,
the court found that the prosecution had redrafted the indictment
in an attempt to mislead the defense by deleting counts connected
to the minutes.
After granting the new trial, Chief Judge Sear disqualified
himself from further involvement. This case was then assigned to
Judge Mary Ann Vial Lemmon, and the government filed a motion for
reconsideration of the order granting new trial (“motion for
reconsideration”). Judge Lemmon transferred the case back to Chief
Judge Sear, who denied both the government’s motion to enforce
recusal and the motion for reconsideration. This appeal timely
followed.
II
Prior to consideration of the merits, we resolve various
challenges to our jurisdiction in this case. These jurisdictional
challenges center on the government’s notice of appeal, whether
Chief Judge Sear appropriately ruled on the motion for
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reconsideration after his recusal, and if we find that Chief Judge
Sear should not have ruled on the motion for reconsideration,
whether we must remand to Judge Lemmon to decide the motion for
reconsideration.
A
O’Keefe argues that we have no jurisdiction to hear this
appeal because the notice of appeal filed by the government fails
to comport with the requirements of 18 U.S.C. § 3731, which governs
interlocutory appeals by the government from orders granting new
trial.3 The government’s notice of appeal specified the denial of
the reconsideration of the order granting new trial and the order
mooting all other motions filed by the government, including the
government’s motion to enforce recusal of Chief Judge Sear.
O’Keefe argues that because the government appealed the denial of
the reconsideration of the order granting new trial rather than the
order granting new trial, § 3731 does not permit jurisdiction over
this appeal.
We rejected a similar jurisdictional challenge in United
States v. Greenwood, 974 F.2d 1449 (5th Cir. 1992). In response to
the same type of argument raised by O’Keefe, the court stated that
3
18 U.S.C. § 3731 (1994) provides in relevant part:
In a criminal case an appeal by the United States shall
lie to a court of appeals from a decision, judgment, or
order of a district court . . . granting a new trial
after verdict or judgment . . . except that no appeal
shall lie where the double jeopardy clause of the United
States Constitution prohibits further prosecution.
Id.
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[a]lthough in form the Government’s notice of appeal was
from the district court’s July 30 denial of the motion to
reconsider, in substance the appeal is one from the
district court’s sentences imposed in the spring of 1991.
. . . [S]o long as a notice of appeal puts the other side
on notice that the final judgment is the subject of the
appeal, a technical defect in the notice of appeal is not
fatal (citations omitted).
Greenwood, 974 F.2d at 1467 n.13 (emphasis in original); see also
9 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 203.17[2], at 86-87
(2nd ed. 1996) (“[A]s long as the intent to appeal from a specific
judgment can be fairly inferred from the notice and the appellee is
not misled by the mistake,” the jurisdiction of the appellate court
is not barred by mistake in notice of appeal.).
Here, we find that O’Keefe was put on notice by the
government’s notice of appeal and that he was not prejudiced by the
misstatement in the notice of appeal. First, appeal of an order
granting new trial can be fairly inferred from a notice appealing
denial of reconsideration of that order because the connection
between the two is clear and direct. See Matute v. Procoast Nav.
Ltd., 928 F.2d 627, 629 (3rd Cir. 1991) (finding link between an
order of dismissal and an order denying motion for reconsideration
of the order of dismissal to be clear and direct). Moreover, both
the government and O’Keefe fully briefed the merits of this appeal,
which would imply that O’Keefe was both on notice that the
government intended to appeal the order granting new trial and that
he was not prejudiced as a result of the misstatement in the
government’s notice of appeal. See, e.g., Foman v. Davis, 371 U.S.
178, 181-82, 83 S. Ct. 227, 229-30, 9 L. Ed. 2d 222 (1962); Kruso v.
International Tel. & Tel., 872 F.2d 1416, 1423 (9th Cir. 1989).
-8-
The order granting new trial and the motion for its reconsideration
are also inextricably linked because we cannot analyze whether the
district court abused its discretion in denying the motion for
reconsideration without considering the merits of the order
granting new trial. Thus, as the government’s intent to appeal the
order granting new trial can be fairly inferred from its noticing
the district court’s denial of reconsideration of that order, and
as O’Keefe was not prejudiced by the misstatement, the mistake in
the notice of appeal does not bar our exercising jurisdiction in
this case.4
B
The government argues that Judge Sear erred in failing to
enforce his recusal and in denying the motion for reconsideration.5
4
O’Keefe alternatively argues that noticing the motion for
reconsideration without mentioning the order granting new trial
resulted in the government waiving appeal on the issue of the order
granting new trial. A notice of appeal “must designate the
judgment, order, or part thereof appealed from.” FED. R. APP. P.
3(c). While a policy of liberal interpretation of notices of
appeal is the rule when the intent to appeal an unmentioned or
mislabeled ruling is clear and no prejudice will result to the
opposing party, when only a specified judgment or part thereof is
noticed, the notice of appeal is generally strictly construed. See
C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1055-
56 (5th Cir. 1981). We found above that O’Keefe clearly had notice
that the government intended to appeal from the order granting new
trial when it appealed from the denial of the reconsideration of
that order and that no prejudice would result to O’Keefe because
the merits of this case were fully argued in the briefs he
presented to this court. Accordingly, we hold that the government
did not waive its appeal of the order granting new trial as a
result of any defects in its notice of appeal.
5
Chief Judge Sear stated that
[b]ecause of the sensitive nature of the court’s inquiry
concerning conduct of government counsel, the court’s
personal participation and questioning of counsel in
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O’Keefe argues that Chief Judge Sear properly refused to enforce
the recusal because, quite simply, Judge Lemmon could not
reconsider what Judge Lemmon had not considered in the first place.
Once a judge recuses himself from a case, the judge may take
no action other than the ministerial acts necessary to transfer the
case to another judge, even when recusal is improvidently decided.
See Doddy v. Oxy USA, Inc., 101 F.3d 448, 457 (5th Cir. 1996)
(holding that judge erred in vacating recusal order after recusing
herself); Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir. 1988)
(stating that judge may only perform the “housekeeping” duties
necessary to transfer a case to another judge after recusing
himself from a proceeding). A ministerial act is usually defined
as an act that is essentially clerical and does not involve the
exercise of discretion or judgment. See United States ex rel.
McLennan v. Wilbur, 283 U.S. 414, 420, 51 S. Ct. 502, 504, 75
L. Ed. 2d 1148 (1931) (describing a ministerial duty as one in which
“the obligation to act [is] peremptory, and plainly defined”);
Moody, 858 F.2d at 143 (holding that orders converting Chapter 11
bankruptcy to Chapter 7 bankruptcy, disqualifying counsel, vacating
a contingent fee agreement, and making findings attacking counsel
exceeded “housekeeping” orders). A district court necessarily has
discretion as to whether to reopen a case in response to a motion
connection with that inquiry, and the findings of the
court resulting from that inquiry, the court feels
compelled to recuse itself from further handling of this
matter in accordance with 28 U.S.C. § 455.
United States v. O’Keefe, No. 96-31181, at 71 (E.D. La. Aug. 15,
1996) (order granting new trial) (hereinafter “Order”).
-10-
for reconsideration. See Lavespere v. Niagara Mach. & Tool Works,
Inc., 910 F.2d 167, 174 (5th Cir. 1990). Thus, when Chief Judge
Sear ruled on the motion for reconsideration, he performed a
discretionary act, not a ministerial act.
O’Keefe (as Chief Judge Sear noted below) essentially argues
that an exception from the bright-line rule for recusals described
above should be created for motions for reconsideration because a
judge cannot reconsider what that judge has not considered
previously. Toward this end, O’Keefe cites McRae v. United States,
420 F.2d 183 (D.C. Cir. 1969), for the proposition that a district
court judge cannot reconsider matters previously decided by another
district court judge, and that the proper method for resolution of
this situation is appeal to a higher court. This argument ignores
the many instances in which one district court judge must
reconsider an order previously granted by another judge because of
the first judge’s death, illness, or disqualification. See TCF Film
Corp. v. Gourley, 240 F.2d 711, 714 (3rd Cir. 1957). It also
overlooks the law of the case doctrine, which encompasses
situations in which one judge has rendered an order or judgment and
the case is then transferred to another judge. See Abshire v.
Seacoast Products, 668 F.2d 832, 838 (5th Cir. 1982). Under the
law of the case doctrine and general principles of comity, a
successor judge has the same discretion to reconsider an order as
would the first judge, but should not overrule the earlier judge’s
order or judgment merely because the later judge might have decided
matters differently. See Loumar, Inc. v. Smith, 698 F.2d 759, 762-
-11-
63 (5th Cir. 1983) (stating that under the law of the case
doctrine, a second court should follow a ruling made by an earlier
court unless the prior decision was erroneous, is no longer sound,
or would create injustice). Thus, even though Judge Lemmon did not
consider the new trial motion initially, Judge Lemmon would have
been able to consider the motion for reconsideration and, as such,
Chief Judge Sear erred when he ruled on the motion for
reconsideration.6
C
The “harmless error” standard is used to determine whether
orders that a judge issues after the judge has, or should have,
recused himself must be vacated. See Liljeberg v. Health Serv.
Acquisition Corp., 486 U.S. 847, 862, 108 S. Ct. 2194, 2203, 100
L. Ed. 2d 855 (1988); Doddy, 101 F.3d at 458; El Fenix de Puerto
Rico v. The M/Y Johanny, 36 F.3d 136, 142 (1st Cir. 1994)
6
We recognize that our ruling today may put one district
judge in the somewhat uncomfortable position of having to pass
judgment on the discretionary rulings of another judge in the
future. However, the values underlying 28 U.S.C. § 455, including
“protecting the litigants’ constitutional entitlement to an
unbiased adjudication and the public’s perception of the integrity
of the judicial process” demand no less. See Doddy, 101 F.3d at
457. Judges have, moreover, under law of the case doctrine
experience reviewing the discretionary rulings of other judges, and
we are confident that they will be able to carry out any additional
duties resulting from our ruling today. A contrary result, we
believe, would mean that when a judge has to recuse himself, the
parties lose the option of filing a motion for reconsideration,
something that we are not inclined to find, both because of the
impact on the parties and because reconsideration may obviate the
need to appeal. See Greenwood, 974 F.2d at 1466. No such problem
exists in this case, of course, as we vacate the order granting new
trial and only remand for Judge Lemmon to hear O’Keefe’s remaining
arguments for new trial that Chief Judge Sear declined to decide
after he granted a new trial based on the deprivation of due
process.
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(concluding that “the need for finality and a common-sense aversion
to frittering away scarce judicial resources militate against an
inflexible rule invalidating all prior actions of a judge
disqualified under § 455(a)”). Under the “harmless error” test, we
examine: (1) the risk of injustice to the parties in this
particular case, (2) the risk that denial of relief will produce
injustice in other cases, and (3) the risk of undermining the
public’s confidence in the judicial process. See Liljeberg, 486
U.S. at 864, 108 S. Ct. at 2205; Doddy, 101 F.3d at 458. As we
explain below, we conclude that it is unnecessary to vacate Chief
Judge Sear’s ruling and remand for Judge Lemmon to rule on the
motion for reconsideration because Chief Judge Sear’s ruling on the
motion for reconsideration was harmless error.7
Applying the three-part harmless error test, we first note
that little risk of injustice to the parties will result from not
vacating the denial of the motion for reconsideration and remanding
for reconsideration by Judge Lemmon. The record is sufficient for
us to review the order granting new trial. Our review of the order
granting a new trial and the denial of the motion for
reconsideration under an abuse of discretion standard, United
7
Another option is also available: we could hold the
appeal in abeyance and remand the motion for reconsideration to
Judge Lemmon for her to rule on the motion for reconsideration. In
the event that Judge Lemmon vacated the order granting new trial,
this appeal would then become moot. Although our decision in
Greenwood could arguably be read to endorse such an approach, see
Greenwood, 974 F.2d at 1469, as the record in this case is fully
developed, very little would be gained by remanding and waiting for
the district court’s ruling on reconsideration rather than
reviewing the order granting new trial ourselves now.
-13-
States v. Pankurst, 118 F.3d 343, 353 (5th Cir. 1997), is only
slightly more deferential than a district court’s review under the
law of the case doctrine. See Abshire, 688 F.2d at 837 (holding
that a successor judge should generally treat an order in a case
transferred by another judge with deference). Moreover, were we to
vacate Chief Judge Sear’s order denying the motion for
reconsideration, then the motion for reconsideration would still be
pending, and we would have to remand for Judge Lemmon to rule on
that motion. See Southland Indus. v. Federal Communications
Comm’n, 99 F.2d 117 (D.C. Cir. 1938) (holding that a decision is
not final until an application for reconsideration has been
decided). Although the need for an appeal to this court might well
be obviated by Judge Lemmon’s decision, it is also possible that
Judge Lemmon might deny the motion for reconsideration, which would
then produce yet another appeal on the merits of the appeal now
before us. Further, both the government and O’Keefe have fully
discussed the merits of this case in their briefs, which, when
considered together with the other facts we adduced above, leads us
to conclude that neither party would be prejudiced by our deciding
the merits of this appeal without remanding to Judge Lemmon for a
ruling on the motion for reconsideration.
Second, our decision today aids, rather than prejudices
justice in other cases because it clarifies an unclear area of the
law and serves as a caution to district court judges of the
importance of taking no discretionary actions after recusal. It
was not until 1984 that 18 U.S.C. § 3731 was amended to permit the
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government to appeal the interlocutory grant of a new trial. PUB.
L. NO. 98-473, § 1206, 98 Stat. 1986 (1984) (codified at 18 U.S.C.
§ 3731). Liljeberg, which established the three-part harmless
error standard for review of decisions made by a judge after
recusal becomes appropriate, was not decided until 1988. Liljeberg
v. Health Serv. Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194,
100 L. Ed. 2d 855 (1988). Moody, the first major case concluding
that a judge could take no action after recusal other than to
perform ministerial acts, was decided in the same year, and we only
reached the same conclusion in December of 1996, after Chief Judge
Sear had denied the reconsideration motion in this case. Doddy v.
Oxy USA, Inc., 101 F.3d 448 (5th Cir. 1996); Moody v. Simmons, 858
F.2d 137 (3rd Cir. 1988). Thus, our decision today aids justice in
other cases by alerting judges to the importance of taking no
further discretionary actions after recusal.
Finally, there is little risk of undermining the public’s
confidence in the judicial process. While in some cases vacation
of orders issued by a judge will restore public confidence in the
legal system, see United States v. Jordan, 49 F.3d 152 (5th Cir.
1995), other courts have held that decisions that are based on
technicalities and do not reach the merits of the case increase
public distrust of the legal system. See Parker v. Connors Steel
Co., 855 F.2d 1510, 1527 (11th Cir. 1988). A pragmatic approach
should be taken to the notion of harmless error so that when in
doubt, a court can reach the merits of an appeal. See, e.g., Brown
Shoe Co. v. United States, 370 U.S. 294, 306, 82 S. Ct. 1502, 1513,
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8 L. Ed. 2d 510 (1962) (stating that “[a] pragmatic approach to the
question of finality has been considered essential to the
achievement of the ‘just, speedy, and inexpensive determination of
every action’” (quoting FED. R. CIV. P. 1)). Accordingly, we hold
that Chief Judge Sear’s ruling on the motion for reconsideration
after recusal was harmless error and does not have to be vacated.
The result of this conclusion is that with all of the challenges to
our jurisdiction cleared away, we now proceed to a resolution of
this appeal on the merits.
III
“[I]t is established that a conviction obtained through use of
false evidence, known to be such by representatives of the State,
must fall under the Fourteenth Amendment. . . . The same result
obtains when the State, although not soliciting false evidence,
allows it to go uncorrected when it appears.” Napue v. Illinois,
360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959).
A Napue violation may occur not only when the prosecuting attorney
knows that a witness’s testimony is false, but also when another
government attorney knows of the false testimony and does nothing
to correct it. See Giglio v. United States, 405 U.S. 150, 153, 92
S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972). False testimony for these
purposes includes testimony that affects only the credibility of a
witness. Napue, 360 U.S. at 269-270, 79 S. Ct. at 1177. Thus, the
grant of a new trial based upon a Napue violation is proper only if
(1) the statements in question are shown to be actually false; (2)
the prosecution knew that they were false; and (3) the statements
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were material. United States v. Blackburn, 9 F.3d 353, 357 (5th
Cir. 1993). On appeal, the government argues that none of these
three elements exists.
We review an order granting new trial under an abuse of
discretion standard. United States v. Pankurst, 118 F.3d 345, 353
(5th Cir. 1997). This standard is necessarily deferential to the
trial court because we have only read the record, and have not seen
the impact of witnesses on the jury or observed the demeanor of the
witnesses ourselves, as has the trial judge. See United States v.
Boyd, 55 F.3d 239, 242 (7th Cir. 1995). Questions of law, however,
are reviewed de novo. Munn v. Algee, 924 F.2d 568, 575 (5th Cir.
1991). On mixed questions of law and fact, we review the
underlying facts on an abuse of discretion standard, but the
conclusions to be drawn from those facts de novo. Ornelas v.
United States, __ U.S. __, 116 S. Ct. 1657, 1662, 133 L. Ed. 2d 334
(1996). The Napue test))specifically the issue of materiality))is
just such a mixed question of law and fact, and so we undertake an
independent appellate analysis to determine whether the facts found
by the trial court rise to the level of the applicable legal
standard.8
8
As the Supreme Court noted in Ornelas, “[i]ndependent
review is therefore necessary if appellate courts are to maintain
control of, and to clarify the legal principles.” Id. at __, 116
S. Ct. at 1662. Thus, while perforce we agree with the Seventh
Circuit’s conclusion in Boyd that deference should be given to the
district court’s finding of facts, we would be remiss in our duty
as an appellate court if we did not decide whether those facts
satisfied the applicable legal standard. See also Miller v.
Fenton, 474 U.S. 104, 114, 106 S. Ct. 445, 451, 88 L. Ed. 2d 405
(1985) (When the “relevant legal principle can be given meaning
only through its application to the particular circumstances of a
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The Supreme Court has recently defined materiality in terms of
a “reasonable probability” of a different outcome. Kyles v.
Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490
(1995). Such a reasonable probability results when nondisclosure
places the case in a different light so as to undermine confidence
in the verdict. Id. at 435, 115 S. Ct. at 1566. The relevant
inquiry examines the challenged evidence collectively, not on an
item-by-item basis. Id. at 436, 115 S. Ct. at 1566-67. “To say
that an error did not contribute to the verdict is, rather, to find
that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed by the record.”
Yates v. Evatt, 500 U.S. 391, 403, 111 S. Ct. 1884, 1893, 114
L. Ed. 2d 705 (1991).
It is axiomatic that not every lie is material. Along with
other circuits, we have limited material lies to those that occur
as a part of the prosecution’s case. See Hudson v. Blackburn, 601
F.2d 785, 789 (5th Cir. 1979); see also United States v. Aichele,
941 F.2d 761, 766 (7th Cir. 1991) (applying same rule). The
prosecution has a duty only to “refrain from knowingly presenting
perjured testimony and from knowingly failing to disclose ‘that
testimony used to convict a defendant was false.’” Aichele, 941
F.2d at 766 (quoting United States v. Endicott, 869 F.2d 452, 455
(9th Cir. 1989)). Thus, when the defense elicits the alleged
perjury on cross-examination, no material falsehood has occurred
case, the Court has been reluctant to give the trier of fact’s
conclusions presumptive force, and in so doing, strip a federal
appellate court of its primary function as an expositor of law.”).
-18-
because the government has not itself knowingly presented false
testimony. Id. We have adopted this position because it is the
duty of the jury to determine the credibility of the witnesses.
See Little v. Butler, 848 F.2d 73, 76 (5th Cir. 1988) (stating that
“prosecutors are seldom able to vouch for their [accomplice
witnesses’] credibility” and that courts should instruct juries to
carefully scrutinize the testimony of such witness). Materiality,
stated another way, occurs when the falsehood results in “a
corruption of the truth-seeking function of the trial process.”
United States v. Agurs, 427 U.S. 97, 104, 96 S. Ct. 2392, 2397, 49
L. Ed. 2d 342 (1975); United States v. Meinster, 619 F.2d 1041, 1042
(4th Cir. 1980) (holding that underlying purpose of Napue and
Giglio is not to punish prosecutor for the misdeeds of a witness,
but rather to ensure that jury is not misled by any falsehoods).
Not all falsehoods are material partially because of our
concern with preserving the adversarial system: it is the
prerogative of defense counsel to plan his or her cross-examination
strategy, and undue clarification or interruption by the
prosecution might interfere with that strategy. See Mills v.
Scully, 826 F.2d 1192, 1196 (2nd Cir. 1987). Thus, courts have
been extremely reluctant to find a deprivation of due process when
the prosecution has provided the defense with the necessary
information and it can utilize the information, but decides, for
tactical reasons, not to use such information. See United States
v. Bethley, 973 F.2d 396, 399 (5th Cir. 1992) (rejecting claim of
Napue violation when government provided defendant with witness’s
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rap sheets and plea agreement in related case and defendant’s
counsel failed to ask question regarding witness’s denial of past
convictions). However, even when the defense is aware of the
falsity of the testimony, a deprivation of due process may result
when the information has been provided to the defense but the
government reinforces the falsehood by capitalizing on it in its
closing argument, see United States v. Sanfilippo, 564 F.2d 176,
178 (5th Cir. 1977), or the defense is unable to utilize the
information, see id. at 178-79, or when the government thereafter
asks misleading questions, United States v. Barham, 595 F.2d 231,
243 n.17 (5th Cir. 1979). Thus, materiality is a method of
maintaining the equal playing field between the prosecution and the
defense necessary to allow the jury to perform its truth-seeking
function.
The trial court concluded that although some of Donaldson’s
falsehoods were revealed to the jury, the “true nature and scope of
Donaldson’s perjury was never disclosed or corrected by the
government, or revealed on cross-examination by the defendants.”
Order at 71. The nature and scope of these falsehoods went
unrevealed because the government never stated until after trial
why it amended the indictment against O’Keefe, why it permitted the
cross-examination of Donaldson to go forward with the FBI 302
report that it knew to be incorrect, and why the two prosecutors
gave inconsistent answers as to when they learned of the
falsehoods. The long, drawn-out pauses before Donaldson answered
the defense’s questions during the critical cross-examination
-20-
colloquy also supported the inference that Donaldson had previously
told the government about his false accusation of O’Keefe.
Further, the court found that the government improperly bolstered
the credibility of Donaldson on redirect and during its closing
argument by eliciting testimony that even though O’Keefe had not
participated in the alteration of the minutes, he had knowingly
incorporated them into an affidavit presented to a Louisiana state
court. Finally, the court concluded that the prosecution thought
that the testimony concerning the minutes was material because it
had changed the indictment in an attempt to cover up the falsehood
and to mislead defense counsel. On appeal, the government argues
that all of Donaldson’s falsehoods were revealed to the jury, and
that even if they were not, those falsehoods were not material to
the jury’s verdict because Donaldson’s testimony was overwhelmingly
corroborated by other evidence and witnesses.
We first believe that the trial court abused its discretion
when it made the factual finding that the government changed the
indictments in an attempt to mislead the defense. This factual
finding was an abuse of discretion because whether or not the
government attempted to mislead the defense, the defense had too
much knowledge of the minutes to be misled. The record shows that
defense counsel and the government conferred prior to trial
regarding the indictment as a result of various pretrial motions
made by the defense contesting the statement in an earlier version
of the indictment charging that O’Keefe had knowingly included the
false minutes in an affidavit he presented to a Louisiana state
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court. The order granting new trial itself notes that the defense
took depositions concerning the minutes and strongly contested the
charge in the indictment concerning O’Keefe’s knowing incorporation
of the minutes into the affidavit. The government sent the defense
a letter conceding that Donaldson had altered the minutes by
himself.9 Therefore, this indictment change and the documents
provided to the defense, when combined with the FBI 302 report, put
defense counsel on notice of possible falsehoods or inconsistencies
uttered in the past by Donaldson, even if the defense did not know
the precise reason the indictment was changed. As a result, we
hold that the district court abused its discretion by finding that
the prosecution altered the indictment in an attempt to mislead the
defense because even if the prosecution made such an attempt, the
defense had too much knowledge of the minutes to be misled.
With respect to the district court’s legal conclusion of
materiality, falsehoods, to the extent that any were uttered,
occurred as a result of the defense’s cross-examination, not from
testimony elicited by the prosecution. Once those falsehoods
emerged, the defense had total leeway in cross-examining Donaldson
and used the information provided by the prosecution to powerful
9
Affidavits by both government prosecutors in this case
and other members of the prosecutorial team state that the
indictment was republished to narrow the issues in contention, not
to mislead the defense. These affidavits are part of the record on
appeal, FED. R. APP. P. 10(a), because they were included with the
government’s reconsideration motion. In light of Chief Judge Sear’s
specific refusal to find that the government attorneys either
suborned perjury or committed misconduct, these affidavits are one
piece of evidence to be considered in deciding whether the
government attempted to mislead the defense by republishing the
indictment.
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effect. See United States v. Adebayo, 985 F.2d 1333, 1341-42 (7th
Cir. 1993) (rejecting Napue claim when false testimony was elicited
by defense counsel on cross-examination because the false testimony
was not part of government’s case, defense counsel had total leeway
to cross-examine witness, and jury instructions included cautionary
statement). A review of the cross-examination set out in the
margin above gives little doubt that the defense ably exploited the
FBI 302 report that the government provided to the defense prior to
Donaldson’s direct testimony and which provided the basis for the
defense’s devastating cross-examination of Donaldson. Even if it
is contended that the government had a duty to correct any
falsehoods made during the course of this cross-examination that
were not corrected by the concessions that Donaldson himself made,
any attempt by the prosecution to intercede during this cross-
examination would have actually harmed the defense by depriving the
jury of the full, dramatic effect. See United States v. Brand, 80
F.3d 560, 565-66 (1st Cir. 1996) (holding that government had no
duty to correct false statement by key witness denying promise of
leniency in exchange for testimony because of clarifying admissions
by witness in presence of jury). There were also contemporaneous
attempts by the government to explain the inconsistencies in
Donaldson’s testimony during sidebar conferences, although we agree
with Chief Judge Sear that those explanations were unsatisfying.
We find that the falsehoods were sufficiently exposed before
the jury to enable the jury to weigh those falsehoods in its
deliberations. Defense counsel moved, immediately after Donaldson
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left the stand, to have his entire testimony stricken from the
record, but Chief Judge Sear refused, stating that Donaldson’s
credibility was for the jury to decide. Defense counsel then made
impeachment of Donaldson the centerpiece of their closing
arguments.10 Chief Judge Sear also included a strong cautionary
statement in the jury instructions. Thus, the jury knew that
Donaldson had lied either when he stated that he had not previously
falsely accused O’Keefe of participating in the alteration of the
minutes or when he stated that he had accused O’Keefe of
participating in altering the minutes. The jury was also able to
10
The various defense counsel representing the various
defendants made the following statements in the course of their
closing arguments:
Attorney Ashley: Is it inconceivable, as you sit there,
ladies and gentlemen, that after Charles Donaldson lied
to this litany of people, including a federal judge, a
federal prosecutors, is it inconceivable that he lied to
these folks? . . . No, it’s not inconceivable at all.
Attorney Martzell: Mr. Donaldson. I made a little
calculation of the legal experience of the people on this
side of the bench. I have not included the Judge’s years
at the bar. Something over 200 years of legal experience
sitting out here. I guaranty, none of us ever have in
the past or will have the unique experience that we had
here of having a man admit under oath that he falsely
accused one of the Defendants and didn’t tell the
government about it.
Attorney Simmons: And it’s been suggested that he didn’t
lie before you. When you go back there and you can
deliberate any way you want, but see if you’ve been
mislead by Mr. Donaldson. What were you thoughts at the
time direct testimony was over? Starting to sound
credible? What were your thoughts after cross-
examination? Incredible. You were mislead. You were
mislead hand-in-hand with the Prosecution. The question
is whether they may know about it, but you were mislead
by at least Mr. Donaldson.
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evaluate the long, drawn-out pauses before Donaldson answered the
defense’s questions. See United States v. Grosz, 76 F.3d 1318,
1328 (5th Cir. 1996) (stating that sufficient exploration and
correction of a falsity by the defense may render the falsehood
immaterial by negating reliance on the falsehood by the jury).
Accordingly, we find that the disclosure to the jury of Donaldson’s
falsehoods coupled with the prosecution’s disclosures to the
defense prevented those falsehoods from being material because
enough information was provided to the jury to enable them to
adequately perform their fact-finding function and to maintain the
level playing field between the prosecution and the defense.11
Defense counsel argued in their motion for new trial and
before us that they would have proceeded differently, that they
would have attempted to impeach the government as well as Donaldson
and would have discussed how the factual basis for the guilty plea
was selected, had they known the full facts surrounding Donaldson’s
11
This finding that the falsehoods were not material is not
negated by the prosecution’s half-hearted attempt to bolster the
credibility of Donaldson on redirect and in closing arguments. Any
such bolstering as may have occurred does not rise to the level of
bolstering in cases where we have reversed the denial of a new
trial. See Sanfilippo, 564 F.2d at 178-79. Moreover, we do not
disagree with the trial court’s conclusion that the government was
aware of Donaldson’s falsehoods prior to trial based on the
inconsistent answers of the two government prosecutors as to when
they were aware that Donaldson had testified falsely. We think
that even if the government had such knowledge prior to trial,
Donaldson’s falsehoods were not material as a matter of law because
the falsehoods were fully explored before the jury. Finally, the
significance of the long, drawn-out pauses before Donaldson
answered O’Keefe’s questions during the critical cross-examination
colloquy is precisely the kind of issue that the jury can weigh,
and should not be a basis for a deprivation of due process based on
the government’s knowing use of false testimony.
-25-
false testimony at the time. We disagree on several counts.
First, the defense repeatedly characterized Donaldson as being
completely impeached during its closing arguments. Second, the
testimony of Donaldson was overwhelmingly corroborated by other
witnesses, and the falsehoods occurred on collateral matters. See
Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995) (holding that
when withheld evidence seriously impeaches key witness’s testimony
on an essential issue, corroborating evidence should be examined to
determine materiality of alleged falsehood). Although it is
immaterial whether the falsehood concerns an essential element of
the government’s case or only a collateral matter affecting
credibility, United States v. Barham, 595 F.2d 231, 241 (5th Cir.
1979), given the degree of impeachment of Donaldson on the stand,
any further impeachment of the type that the defense now desires
would merely have been cumulative. See Guam v. Palomo, 35 F.3d
368, 372 (9th Cir. 1994) (finding an alleged falsehood nonmaterial
when “additional impeachment value gained would have served only to
emphasize a fact already established on cross-examination”).
Third, although the burden to correct false testimony is on the
government, the defense may have waived impeachment of the
government by not calling FBI Agent Phillips, the author of the
notes on which the FBI 302 report was based and who was present in
court at various times. See Bethley, 973 F.2d at 399. Finally,
Chief Judge Sear indicated that he was prepared to deny the motion
for new trial prior to argument on the motion, but the answers of
government attorneys at that argument convinced him otherwise. The
-26-
affidavits of both government attorneys and other members of the
prosecutorial team that the government attached to its motion for
reconsideration, in the absence of a finding of prosecutorial
misconduct, suggest that the government’s answers at the argument
of the motion for new trial were inartful but not duplicitous.
A review of cases finding a violation of Napue shows that the
falsehoods in those cases have usually been far more serious than
those that occurred in this case. We have found a violation of
Napue in cases when there was a material discrepancy between the
testimony of government witnesses and defense witnesses, the
government was aware that its witnesses committed perjury on the
stand but such perjury was not disclosed to the jury, and the
credibility of the witnesses was the key to the jury’s
determination of guilt or innocence. Barham, 595 F.2d at 242-43.
We reversed because not only was the jury shielded from the fact
that the witnesses had committed perjury, but it was also shielded
from the fact that the witnesses had attempted to manipulate the
jury’s decision-making process by creating a false impression. Id.
at 243. Even in such an apparently egregious situation, we were
still loath to grant a new trial. We found that the government had
provided defense counsel with a letter disclosing the plea bargains
that the witnesses had entered into, but that the counsel had
inexcusably overlooked the letters. While such disclosure would
normally have been sufficient to prevent a Napue violation, the
government’s posing of misleading questions to the witnesses
negated its disclosure, and that created the deprivation of due
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process. Id. at 243 n.17.
The grant of a new trial is necessarily an extreme measure,
because it is not the role of the judge to sit as a thirteenth
member of the jury. See State v. Ladabouche, 502 A.2d 852, 856
(Vt. 1985) (stating that such a formulation would allow the judge
to order a retrial when he disagreed with the outcome). The
judge’s job, in connection with an alleged Napue violation, is to
grant a new trial when the fact-finding function of the jury has
been corrupted by a material falsehood of which the government was
aware. Based on the facts of this case, we cannot find that the
jury was prevented from performing its essential function.
Therefore, we do not find that there is a reasonable probability
that the jury would have reached a different outcome even had it
been fully aware of all of the alleged inconsistencies and
falsehoods in Donaldson’s testimony. As a result, the falsehoods
were not material and no Napue deprivation of due process occurred.
IV
Although we find that no violation of Napue occurred, we will
nevertheless uphold the district court’s order granting new trial
if it is in the “interests of justice.” FED. R. CRIM. P. 33. These
“interests of justice” may be based on the trial judge’s evaluation
of witnesses and weighing of the evidence. See Tibbs v. Florida,
457 U.S. 31, 37-38, 102 S. Ct. 2211, 2215-16, 72 L. Ed. 2d 652
(1982). Although grant or denial of the motion is entrusted to the
sound discretion of the judge, motions for new trial are not
favored, and are granted only with great caution. United States v.
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Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977). “The remedy of a new
trial is rarely used; it is warranted ‘only where there would be a
miscarriage of justice’ or ‘where the evidence preponderates
heavily against the verdict.’” United States v. Andrade, 94 F.3d
9, 14 (1st Cir. 1996). Chief Judge Sear principally based the
grant of new trial on the finding of a violation of Napue, but this
finding was reinforced by the delayed release of FBI 302 reports
(for both Donaldson and Moore) to the defense, the “cloud” cast
over the testimony of Moore by the changes in his testimony, and
the prosecution’s attempt to mislead the defense by changing the
indictment. Without the Napue violation, we hold that it was an
abuse of discretion to grant a new trial based on these findings.
First, the trial court noted that the FBI 302 reports were
provided to the defense within the time mandated by the Jencks
Act,12 18 U.S.C. § 3500 et seq., but stated that it could not
“conclusively find that the production of the reports during trial
did not adversely affect the court’s ability to reach a just
conclusion, particularly in light of the government’s conduct in
connection with the FBI 302 reports of Charles Donaldson.” Order,
at 54. The argument is not that the government suppressed
evidence, see Brady v. Maryland, 373 U.S. 83, 104, 83 S. Ct. 1194,
1196-97, 10 L. Ed. 2d 215 (1963), but that the disclosure of the
12
The Jencks Act requires the government to produce any
statements made by a witness concerning the subject matter on which
the witness has testified that are in the possession of the
government after the witness has testified on direct examination in
a criminal trial prosecuted by the federal government. 18 U.S.C.
§ 3500(b); FED. R. CRIM. P.26.2.
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reports was so delayed that the defendants were unable to use them
effectively at trial and the court’s ability to reach a just result
was impaired. See United States v. Campagnulo, 592 F.2d 852, 861-
62 (5th Cir. 1979). When evidence is disclosed at trial in time
for it to be put to effective use, a new trial will not be granted
“simply because it [the Brady evidence] was not disclosed as early
as it might have and, indeed, should have been.” United States v.
McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985). Moreover, even if
the disclosure of Brady material was impermissibly delayed, such
evidence must still be found to be material. See Kyles v. Whitley,
514 U.S. 419, 434, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995).
In this case, the government submitted the FBI 302 report of
Moore to the court for an in camera review after cross-examination
had begun, following which the court gave the report to the
defense. Trial was recessed for the remainder of that day to allow
the defense time to prepare. Donaldson’s FBI 302 report was turned
over to the court for in camera review prior to the beginning of
his direct testimony, and the court then handed it over to the
defense. During the more than one day of Donaldson’s testimony,
the defense was able to review the testimony. Although turning
these reports over to the defense earlier would have certainly
avoided the delays during trial, based on our review of the record
and the absence of any affirmative finding (other than the
conclusion) by Chief Judge Sear that the delayed disclosure of the
reports may have impaired O’Keefe’s ability to effectively cross-
examine Donaldson and Moore, we cannot find that the delayed
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disclosure of the FBI 302 reports violated Brady. See Lawrence v.
Lensing, 42 F.3d 255, 257 (5th Cir. 1994); United States v.
Randall, 887 F.2d 1262, 1269 (5th Cir. 1989); McKinney, 758 F.2d at
1050. As we have extensively discussed above, O’Keefe’s attorneys
used Donaldson’s FBI report to conduct a devastating cross-
examination. Defense counsel were also able to bring out
inconsistencies in Moore’s testimony as well, although he did not
perjure himself. Thus, without viewing the delayed disclosure in
the light of a Napue violation, we find that this basis for new
trial has little merit.
Next, the district court also found that the changes in the
testimony of Moore, another key government witness, cast a cloud
over his testimony, which, when viewed “in light of the
circumstances surrounding Donaldson’s testimony,” supported the
grant of a new trial. However, Chief Judge Sear also found that
O’Keefe could not point to any specific instances of perjury by
Moore, and that the changes in Moore’s testimony provided ample
grounds for cross-examination. No violation of Napue was alleged
in connection with Moore’s testimony, and these inconsistencies
were explored before the jury on cross-examination. Further, Chief
Judge Sear separately considered the inconsistencies in Moore’s
testimony as the basis for a new trial in another part of the order
granting new trial and concluded that the claims of O’Keefe with
regard to Moore’s testimony lacked merit. Thus, without being
viewed in the light of a Napue violation, this basis for new trial
also has little merit.
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Finally, the district court found that the prosecution’s
attempts to mislead defense counsel by altering the indictment, in
light of Donaldson’s testimony at trial, supported granting a new
trial. We have already discussed the changes in the indictment,
and have found that the district court abused its discretion in
finding that the government attempted to mislead the defense by
redrafting the indictment because the prominence of the minutes in
pretrial proceedings made it impossible for the government to have
misled the defense. Thus, this basis for new trial has little
merit.
Viewed as a whole, each of these three findings of the court
primarily relied upon the finding of a Napue violation because each
finding was discussed “in light of” the Napue violation. Taking
away the finding of a violation of Napue, we are unable to conclude
that the remaining grounds for grant of new trial meet our past
standards for grant of new trial or would be in the “interests of
justice.” Thus, we conclude that Chief Judge Sear abused his
discretion in granting a new trial. Accordingly, we vacate the
order granting a new trial.13
V
When Chief Judge Sear granted the motion for new trial, he
declined to address O’Keefe’s remaining arguments for new trial,
which included arguments based on the government’s voluntary
dismissal of five counts from the indictment after the government
13
In light of our vacation of the order granting new trial,
we decline to address arguments concerning whether the grant of new
trial should include Schmitz.
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had concluded its case, the alleged “marginal” nature of the
evidence, and the cumulative effect of all the grounds asserted in
all other defense motions. We accordingly remand to the district
court to hear these remaining arguments for new trial.
The government has suggested that if a remand is needed, the
case should be remanded to a judge outside the Eastern District of
Louisiana, relying on United States v. Jordan, 49 F.3d 152, 159-160
(5th Cir. 1995) (remanding case involving judicial disqualification
to district court outside original district). Such a remedy is
discretionary, and the exception rather than the rule. See id. at
162 n.21 (Garza, Emilio, J., dissenting). It seeks to avoid
placing a district judge’s colleagues in the uncomfortable position
of passing on her previous rulings. Id. at 160 n.18. In Jordan,
the judge abused her discretion by failing to recuse herself prior
to sentencing the defendant after recusal had become appropriate
under § 455(a). Id. at 158. Here, we have already vacated the
order granting new trial, and Judge Lemmon will only review
O’Keefe’s remaining arguments for new trial, which does not require
her to pass judgment on any of Chief Judge Sear’s discretionary
rulings. In addition, the law of the case doctrine and general
principles of comity serve to respect and preserve the authority of
Chief Judge Sear. See, e.g., Loumar v. Smith, 698 F.2d 759, 762
(5th Cir. 1983); Abshire v. Seacoast Prod., Inc., 668 F.2d 832, 837
(5th Cir. 1982). Therefore, we remand the case to Judge Lemmon.
For the foregoing reasons, the order granting new trial is
VACATED, and the case is REMANDED to Judge Lemmon to hear O’Keefe’s
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remaining arguments for new trial. The government’s motion to
remand this case to a court outside the Eastern District of
Louisiana is DENIED.
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