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William F. Dye v. Louis Stender ( 2000 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 98-2040
    ___________
    William Francis Dye,                     *
    *
    Appellant,                  *
    * Appeal from the United States
    v.                                 * District Court for the
    * District of Minnesota.
    Louis A. Stender, Warden,                *
    *
    Appellee.                   *
    ___________
    Submitted: November 19, 1999
    Filed: March 23, 2000
    ___________
    Before WOLLMAN, Chief Judge, LAY, and HANSEN, Circuit Judges.
    ___________
    WOLLMAN, Chief Judge.
    William F. Dye appeals from the district court’s1 denial of a writ of habeas
    corpus under 28 U.S.C. § 2254 on his claim that two witnesses at his state murder trial
    had undisclosed deals with the government. We affirm.
    1
    The Honorable John R. Tunheim, United States District Judge for the District
    of Minnesota, adopting the recommendation and report of the Honorable John M.
    Mason, United States Magistrate Judge for the District of Minnesota.
    I.
    On September 29, 1981, a jury convicted Dye of second-degree murder for the
    fatal shooting of the assistant manager of a St. Paul pizzeria during a robbery attempt.
    The evidence linking Dye to the offense was characterized by the Supreme Court of
    Minnesota as “so strong that it would serve no useful purpose to summarize it . . . .”
    State v. Dye, 
    333 N.W.2d 642
    , 643 (Minn. 1983). Along with the two witnesses
    whose testimony is in question, the State's evidence included the testimony of the three
    pizzeria employees who were present during the shooting and of numerous police
    agents involved in the surveillance of Dye when he disposed of what was determined
    to be the murder weapon. After his conviction and sentencing to 298 months'
    imprisonment, Dye sought relief from the state courts. His claims were denied on
    appeal and in four state post-conviction relief proceedings.
    The two individuals whose testimony Dye challenges in this appeal are Deck
    Brewer, an inmate who had had contact with Dye in jail during the time preceding
    Dye’s trial, and Frank Kranz, an acquaintance who, at the time of Dye’s arrest, had
    pled guilty to federal charges and was awaiting sentencing. Dye contends that
    undisclosed deals that Kranz and Brewer made with state and federal officials violated
    his right to the disclosure of material evidence established by Brady v. Maryland, 
    373 U.S. 83
    , 87 (1963). Dye offers in support of this argument two letters written by
    government officials on Kranz’s behalf four months before Dye’s trial, together with
    testimony from Brewer’s sentencing hearing, which occurred approximately a month
    after Dye’s trial. Dye also contends that the State’s knowing use of the witnesses’
    testimony that there were no deals violates the rule of Napue v. Illinois, which forbids
    a prosecutor to allow false testimony to go uncorrected. See 
    360 U.S. 264
    , 269-70
    (1959).
    In response to Dye’s third petition for post-conviction relief, the state court
    explicitly stated that there was no evidence that suggested that either Kranz or Brewer
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    had had a deal or had been compensated for testifying against Dye. See Appellee’s
    App. at 32-35 (Dye v. State, Minn. Dist. Ct. Order and Mem. of Feb. 12, 1993
    (unpublished)). In affirming this denial of relief, which also denied an evidentiary
    hearing on the matter, the Minnesota Court of Appeals held that regardless of whether
    the letters should have been disclosed, Dye could not succeed on his Napue claim
    because there was no reasonable likelihood that any allegedly false testimony affected
    the jury and that, under Brady, Dye could not succeed because the alleged non-
    disclosure was “immaterial in light of the other evidence.” See Appellee’s App. at 38
    (Dye v. State, Minn. Ct. App. Order Op. of Aug. 10, 1993) (unpublished)).
    Dye then filed a petition for habeas corpus in federal court. After examining the
    record, a magistrate judge issued a report and a recommendation that Dye’s petition be
    denied. The magistrate judge found no error in the state courts’ conclusion that there
    was no evidence of a deal for either witness. The magistrate also agreed that even if
    such evidence had existed, Brady would not have required its disclosure nor would it
    have changed the outcome or been “anything but harmless” under Napue. See
    Appellee’s App. at 13-16, 20-21 (Dye v. Stender, Report and Recommendation of June
    3, 1997). After conducting a de novo review, the district court adopted the magistrate
    judge’s report and recommendation and dismissed Dye’s petition.
    We granted a certificate of appealability on Dye’s claims concerning Kranz and
    Brewer.
    II.
    A. Standard of Review
    Whether the State made deals with Kranz and Brewer is a factual question,
    entitled to a presumption of correctness unless the petitioner can clearly and
    convincingly show otherwise. See Blair v. Armontrout, 
    916 F.2d 1310
    , 1318 (8th Cir.
    -3-
    1990) (existence of deals is factual question); 28 U.S.C. § 2254(e)(1) (1999)
    (presumption of correctness); Richardson v. Bowersox, 
    188 F.3d 973
    , 977 (8th Cir.
    1999) (same presumption). We review the district court’s findings of fact for clear
    error and its conclusions of law de novo. See 
    Richardson, 188 F.3d at 977
    .
    Dye filed his petition for habeas corpus relief on October 15, 1996, so we apply
    the standards of the Antiterrorism and Effective Death Penalty Act of 1996. Pub. L.
    No. 104-132, 110 Stat. 1214 (April 24, 1996) (AEDPA). “We may grant the writ only
    if the state court's adjudication of the claims ‘resulted in a decision that was contrary
    to, or involved an unreasonable application of, clearly established Federal law, as
    determined by the Supreme Court,’” Lingle v. Iowa, 
    195 F.3d 1023
    , 1025 (8th Cir.
    1999) (quoting 28 U.S.C. § 2254(d)(1) (1999)), or if the state court’s adjudication
    “resulted in a decision that was based on an unreasonable determination of the facts in
    light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2)
    (1999).
    B. Evidence of a Deal
    The interest of the government “in any criminal prosecution ‘is not that it shall
    win a case, but that justice shall be done.’” 
    Lingle, 195 F.3d at 1026
    (quoting Berger
    v. United States, 
    295 U.S. 78
    , 88 (1935)). “For this reason . . . the prosecution is
    required to divulge all evidence favorable to the accused that is material either to guilt
    or to punishment,” a rule known as the Brady rule. Id.; see 
    Brady, 373 U.S. at 87
    .
    Evidence that “impeach[es] the credibility of a government witness . . . falls under the
    Brady doctrine.” United States v. O’Conner, 
    64 F.3d 355
    , 358 (8th Cir. 1995). To
    establish a violation of Brady, a defendant must show that: (1) the prosecution
    suppressed evidence, (2) the evidence was favorable to the accused, and (3) the
    evidence was material. See Johns v. Bowersox, No. 97-1637, slip. op. at 8 (8th Cir.
    Feb. 8, 2000). A Brady violation will not necessarily result in reversal of the conviction
    -4-
    if it was “not prejudicial and amount[s] to harmless error.” United States v. Williams,
    
    194 F.3d 886
    , 889 (8th Cir. 1999).
    1. Kranz’s Testimony
    Kranz testified at Dye’s trial that he had been offered no deals or promises by
    state or federal officials at any time. Dye points out that both an assistant county
    attorney and an assistant United States attorney wrote letters in July of 1981 describing
    Kranz’s cooperation in the murder investigation. Dye contends that these letters, which
    were not disclosed to Dye until after his conviction, are evidence of inducement for
    Kranz to testify against him and that even if they were unrelated to Kranz's trial
    testimony, they still constitute evidence that Kranz had had a deal with the government,
    and thus raise an inference that Kranz likely had another agreement for his testimony.
    We find no clear error in the district court’s finding that Kranz did not have a
    deal and that Dye did not successfully rebut the presumption of the correctness of the
    state court’s determination. The letters written on Kranz’s behalf stressed his
    voluntary cooperation in helping to solve the murder and only mention the probability
    that he would testify at Dye’s trial. Kranz had pled guilty to federal charges before the
    pizzeria murder occurred and was sentenced approximately a week after Dye’s arrest,
    months before the letters were written. That Kranz moved for a reduction in his federal
    sentence a month before Dye’s trial and may have used the letters as support does not
    clearly and convincingly belie the proposition that the government had no arrangements
    with Kranz, either during the investigation or during Dye's trial. The state court that
    heard Dye’s third petition noted that such sentence reduction motions are routinely filed
    and that the sentence Kranz ultimately received was entirely within the discretion of the
    federal judge. Kranz may certainly have hoped that his cooperation with authorities in
    solving the crime would help him, but the letters do not present clear, convincing
    -5-
    evidence of an inducement. Accordingly, we cannot say that the district court clearly
    erred in finding that no deals had been made.
    2. Brewer’s Testimony
    Brewer testified that state officials had not given him any promises or deals. At
    Brewer’s sentencing hearing on November 4, 1981, more than a month after Dye’s
    trial, Brewer’s attorney mentioned Brewer’s Dye-trial testimony during a discussion
    of a plea bargain. Dye points to this as evidence that Brewer’s testimony at Dye’s trial
    was given pursuant to a deal, the existence of which should have been disclosed.
    The state courts noted that it was likely that Brewer's “deal,” if he had one, was
    to plead guilty to a superseding indictment in exchange for a lesser sentence. There is
    evidence that Brewer had hoped to gain a sentence reduction by testifying against Dye,
    bragging about this possibility within the jail confines (evidence of which was
    presented at Dye’s trial), but we cannot say that the testimony at his federal sentencing
    hearing conclusively shows that he had an arrangement with the government relating
    to this testimony. Accordingly, we find no clear error in the district court’s finding that
    Brewer had no deal with the state.
    3. Materiality
    Assuming for the purpose of argument that Kranz and Brewer had entered into
    deals with the government in exchange for their testimony, we conclude that evidence
    thereof would not be material under Brady. Evidence is considered material when a
    reasonable probability exists that, “had the evidence been disclosed to the defense, the
    result of the proceeding would have been different.” 
    O’Conner, 64 F.3d at 358
    (quoting United States v. Bagley, 
    473 U.S. 667
    , 682 (1985)). A reasonable probability
    is “a probability sufficient to undermine confidence in the outcome.” 
    Id. -6- Dye
    argues that Kranz and Brewer were crucial witnesses and that the evidence
    of their arrangements with the government would have been important in gauging their
    credibility. Kranz testified about a “dry run” of the pizzeria robbery, which he took
    with Dye before the murder occurred. He also identified the murder weapon as
    belonging to Dye. Brewer testified to Dye’s comments in jail about the murder
    charges, comments that provided an explanation on the issue of intent and which
    suggested that Dye manufactured an alibi after his arrest. Brewer also provided an
    explanation for several of Dye’s actions that would have otherwise seemed rather
    counterintuitive, such as his retaining the murder weapon after disposing of other
    incriminating evidence.
    We believe that in light of the overwhelming circumstantial evidence of Dye’s
    guilt, any additional evidence of Kranz’s and Brewer’s lack of credibility would have
    been immaterial. Dye matched the general physical description of the robber given by
    eye-witnesses, he attempted to dispose of the murder weapon, he owned a pair of
    gloves that were determined to likely have been used in the recent firing of a gun, and
    he attempted to dispose of a mask similar to that worn by the robber. The testimony
    of many police officers, of the eye-witnesses, and of forensic experts linked Dye to the
    crime and corroborated Brewer’s and Kranz’s testimony. Kranz and Brewer were
    subjected to extensive cross-examination regarding their felony convictions. Kranz was
    questioned about his agreement with state officials to tape record telephone
    conversations with Dye. These conversations were orchestrated to provide
    incriminating evidence against Dye; the recordings were ultimately played at trial by
    defense counsel. The defense also presented the testimony of several prisoners who
    described the animosity between Brewer and Dye and how Brewer encouraged other
    inmates to testify against Dye, boasting that his testimony was going to earn him a
    sentence reduction and that their testimony could do the same for them.
    In light of the evidence, our confidence in the verdict is not undermined, and
    therefore we conclude that Dye’s claim must fail.
    -7-
    C. Perjured Testimony Under Napue
    Because we find no clear error in the factual determination that there were no
    secret deals with Kranz and Brewer, and thus that neither witness perjured himself on
    that topic, we need not address Dye’s Napue claims. Moreover, for the same reasons
    that our confidence in the verdict is not undermined in the Brady context, we do not
    believe Dye could successfully show a reasonable likelihood that the jury would have
    been affected by any of the false testimony, a necessary component of a Napue claim.
    The judgment is affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -8-