United States v. Cliffina Johnson ( 2009 )

FILED
NOT FOR PUBLICATION DEC 29 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-16990
Plaintiff - Appellee, D.C. Nos. 5:04-cv-03340-RMW
5:99-cr-20092-RMW
v.
CLIFFINA E. JOHNSON, MEMORANDUM *
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 08-16991
Plaintiff - Appellee, D.C. Nos. 5:06-cv-06276-RMW
5:99-cr-20092-RMW
v.
FREDERICK L. SHIRLEY,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted December 7, 2009
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, CALLAHAN, and LUCERO, ** Circuit Judges.
This is a consolidated appeal from the district court’s denial of Cliffina
Johnson’s and Frederick Shirley’s 28 U.S.C. § 2255 motions to vacate their
convictions for conspiracy to bribe a public official and bribery of a public official.
Johnson and Shirley argue they are entitled to a new trial on the basis of their
discovery, more than three years after they had been convicted and sentenced, that
the government’s key witness, Clarence Walker, had been indicted on criminal
charges unrelated to Johnson’s and Shirley’s crimes. The district court denied
relief, concluding Walker’s own knowledge of his criminal activities could not be
attributed to the government at the time of trial. It ruled this information was not
material and would not have affected the result. We review the district court’s
denial of a § 2255 motion de novo. United States v. Gamba, 541 F.3d 895, 898
(9th Cir. 2008). The district court did not err, and we affirm.
There was no due process violation at the time of trial under Brady v.
Maryland, 373 U.S. 83 (1963), or Napue v. Illinois, 360 U.S. 264 (1959), because
Walker’s own knowledge of his criminal conduct and the alleged falsity of his
testimony cannot be attributed to the government. Walker was not a law
**
The Honorable Carlos F. Lucero, U.S. Circuit Judge for the Tenth
Circuit, sitting by designation.
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enforcement officer or a member of the prosecution team; rather, he was a civilian
cooperating witness. See United States v. Endicott, 869 F.2d 452, 455-56 (9th Cir.
1989); United States v. Butler, 567 F.2d 885, 891 (9th Cir. 1978) (per curiam).
There was also no post-trial violation of Brady, even assuming Brady
applies to the government’s nondisclosure of impeachment evidence discovered
after trial. Under Brady, “favorable evidence is material, and constitutional error
results from its suppression by the government, ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.’” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). There is no
“reasonable probability” that a trial of Johnson and Shirley with the new
information about Walker’s criminal activities would have produced a different
result. At the time the government learned of these activities, Walker had not been
convicted – much less charged – of any crime and did not know he was under
investigation. Therefore, if Johnson and Shirley had been able to ask him about his
criminal activities on cross-examination, Walker could have denied his guilt or
invoked his Fifth Amendment privilege against self-incrimination. Johnson and
Shirley would not have been allowed to use extrinsic evidence to prove them. See
Fed. R. Evid. 608(b).
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Even if Johnson and Shirley could have succeeded in impeaching Walker
with other crimes, in an effort to show the defendants were induced to commit
these crimes, the district court correctly ruled it could have made little difference.
Phone calls between Walker and Johnson were recorded and they, along with
Johnson’s statements to federal agents after her arrest, demonstrate that Johnson set
up the bribery arrangement. Recorded conversations between Walker and Shirley
establish Shirley was predisposed to the bribery scheme. Neither was induced to
participate. See United States v. Johnson, 34 Fed. App’x 381 (9th Cir. Apr. 9,
2002) (unpublished mem. disp.). Therefore, there is no reasonable probability that
the impeachment of Walker, even if it could have been accomplished, would have
produced a different result. Under the Brady standard or the standard for granting
a new trial motion to determine the materiality of the government’s nondisclosure
of Walker’s criminal activities, Johnson and Shirley are not entitled to relief.
AFFIRMED.
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