United States Court of Appeals For the First Circuit ____________________

No. 00-2014

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL GONZÁLEZ-GONZÁLEZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

____________________

Before

Torruella, Selya and Lynch, Circuit Judges.

____________________

Judith H. Mizner for appellant. Rose A. Briceño, Attorney, Criminal Division, Department of Justice, for appellee.

____________________

July 19, 2001 ____________________ LYNCH, Circuit Judge. This case presents a question this

court previously reserved: what is the standard to be applied to a

criminal defendant's motion for a new trial where the claim is that the

prosecution knowingly used perjured testimony.

Manuel González-González, convicted of drug conspiracy and

money laundering offenses in Puerto Rico, sought a new trial based on

what he asserts is newly discovered evidence that two government

witnesses recanted their testimony against him after his trial.

González says those two witnesses perjured themselves, and that the

prosecution knew of at least one witness' perjury at the time. On this

point the trial judge made no finding as to whether there was perjury

or, if so, whether the government knew about it. Instead, the trial

judge held that defendant did not, in any event, meet a "reasonable

probability of a different result" standard, thus applying the standard

used for claims of failure to disclose exculpatory evidence under Brady

v. Maryland,

(1963). González also sought a new trial

based on the government's failure to disclose exculpatory evidence, and

he claims that the prosecution engaged in misconduct during his trial

by misstating the extent of a government witness' cooperation. The

district court denied the motion. We affirm.

I.

González was charged on November 2, 1994 with conspiracy to

possess with intent to distribute cocaine and marijuana, possession

with intent to distribute marijuana, possession with intent to

distribute cocaine, importation of marijuana and cocaine, and aiding

-2- and abetting in the laundering of narcotics-related proceeds. After a

nineteen-day jury trial, González was found guilty as charged and

sentenced to life imprisonment.

At González's trial, several of González's alleged co-

conspirators testified about González's involvement in the drug and

money laundering offenses charged, as did several cooperating witnesses

and federal agents involved in the investigation. In addition, the

government introduced documentary evidence, such as tape recordings of

telephone conversations, travel records, and surveillance photographs

to corroborate the testimonial evidence. We summarize the evidence

that was before the jury.

One of the government witnesses, Ricardo Rivero, testified

that in 1991 González recruited him to assist in retrieving and

repackaging 900 pounds of marijuana imported into Puerto Rico from

Colombia, and in transporting cocaine from Puerto Rico to New York.

The drugs were stored at the home of Manuel Garrido. Luz Marina

Giraldo, another witness cooperating with the government, corroborated

Ricardo's testimony, as did an FBI agent who arrested Garrido and found

the drugs.

Another of González's alleged recruits, Roberto Garraton-

Rivera, testified as a government witness that he had participated in

drug trafficking activities with González. Garraton described specific

occasions on which he and other associates of González smuggled drugs

-3- to New York at González's behest. Both Garraton and Ricardo testified

that they once called González to resolve a dispute they had over

Garraton's payment for a shipment of drugs.

Several witnesses, including Ricardo and Giraldo, testified

about a large shipment of marijuana and cocaine that González imported

from Colombia to Puerto Rico in 1992, which was buried in the sand at

a particular beach. Law enforcement officers testified that they

seized a similar quantity of drugs in the same location as the one

described in Ricardo's and Giraldo's testimony. Ricardo and Roberto

Sierra Rivera, a paid government informant, also testified that they

assisted González's organization in importing cocaine from Colombia to

Puerto Rico in 1992. Both Ricardo and Sierra testified that they

delivered some of the shipment to New York, and returned to Puerto Rico

with the drug sale proceeds; they also testified that another

participant was arrested on the return trip to Puerto Rico, which was

corroborated by the arresting officer. Sierra also testified about the

activities of González's drug trafficking enterprise during 1993. Law

enforcement agents corroborated Sierra's testimony.

The government also provided evidence that González and his

associates laundered the proceeds from the drug sales through financial

institutions in Puerto Rico, then sent the money to Colombia. A

cooperating government witness, Angel Santiago Mora, and an undercover

FBI agent, Martin Suarez, testified about several instances when

-4- González and others in his organization delivered several hundred

thousand dollars in cash to them to be laundered. In addition to the

testimony of Moran and Suarez, the government also produced audiotapes

of González and his associates in which González made admissions about

his participation in drug trafficking and money laundering activities.

After he was convicted and we affirmed his conviction on

appeal, see United States v. González-González,

(1st Cir.

1998), González moved for a new trial under Rule 33, Fed. R. Crim. P.,

based on newly discovered evidence which, González claimed,

demonstrated that both Garraton and Giraldo had testified falsely

against him at trial. In support of those claims, González offered

sworn statements of two inmates attesting that they had overheard

Giraldo recanting her trial testimony, and one inmate attesting that

Garraton had recanted his testimony. González also claimed he was

entitled to a new trial because the government knowingly permitted the

introduction of false testimony by Giraldo and pressured Giraldo to

testify falsely. In addition, González cited Brady violations and

prosecutorial misconduct, claiming that the government failed to

disclose exculpatory evidence, including an FBI report of Giraldo's

debriefing, and also misled both González and the court about the

status of Giraldo's cooperation with the government.

The district court denied González's motion, concluding that

there was no reasonable probability that the evidence in the affidavits

-5- would lead to González's acquittal upon retrial in light of the

extensive evidence against González in addition to Giraldo and

Garraton's testimony. The court also found that any Brady violations

by the government did not compromise González's right to a fair trial

because the undisclosed evidence was merely cumulative of evidence

González used at trial to impeach Giraldo's credibility.

II.

We review for manifest abuse of discretion the district

court's denial of González's motion for a new trial. United States v.

Alicea,

(1st Cir. 2000). The district court's

interpretation of legal standards is reviewed de novo. United States

v. Josleyn,

(1st Cir. 2000).

González brought his new trial motion under Fed. R. Crim. P.

33, which allows the court to order a new trial "if the interests of

justice so require," and under a theory of alleged violations of Brady

v. Maryland,

(1963), which requires the prosecution to

disclose material exculpatory evidence in its possession.

A. Standards for Motions for New Trial

Generally under Rule 33, a defendant who seeks a new trial

based on newly discovered evidence must show that: "(1) the evidence

was unknown or unavailable to the defendant at the time of trial; (2)

failure to learn of the evidence was not due to lack of diligence by

the defendant; (3) the evidence is material, and not merely cumulative

-6- or impeaching; and (4) it will probably result in an acquittal upon

retrial of the defendant." United States v. Wright,

(1st Cir. 1980); see also Alicea,

. A defendant's

new trial motion must be denied if he fails to meet any one of these

factors. United States v. Falu-Gonzalez,

(1st Cir.

2000).

Different standards as to the third and fourth showings

govern the consideration of new trial motions depending on the grounds

for the motion. As we described in Josleyn, if the basis is that the

government has failed to disclose information required by Brady, then

the more defendant-friendly Kyles v. Whitley standard applies. See

Joselyn,

. Under the Kyles standard, the defendant

must show a "reasonable probability" that had the evidence been

disclosed to the defense the result of the proceeding would have been

different, and that, in turn, requires an analysis of whether the trial

resulted, in the absence of such evidence, in a verdict worthy of

confidence. Kyles v. Whitley,

(1995). If, however,

the motion is a routine Rule 33 motion based on newly discovered

evidence that does not involve an alleged Brady violation, then the

standard is more onerous for defendants, and defendant must show the

new material evidence "will probably result in an acquittal." Wright,

. This means an "actual probability that an acquittal

would have resulted if the evidence had been available." United States

-7- v. Sepulveda,

(1st Cir. 1993).

A further application of these two basic standards -- the

Kyle "verdict worthy of confidence" standard and the Rule 33 "actual

probability" of acquittal standard -- was addressed in United States v.

Huddleston,

(1st Cir. 1999). The question there was what

standard to apply to a new trial motion which alleged that the

prosecutor had unwittingly used perjured testimony. See

. Huddleston rejected earlier cases in this circuit suggesting

that in such a situation, it may be appropriate to apply a lower

standard, announced in Larrison v. United States,

(7th Cir.

1928), that a defendant need only show that the newly discovered

evidence "might" produce a different result. See Larrison,

; see also United States v. Natanel,

(1st Cir.

1991). Instead, Huddleston held that

when a defendant grounds a motion for a new trial in a criminal case on a claim that he has newly discovered perjury on the part of one or more government witnesses, the conviction nonetheless should stand unless the force of the newly discovered event (i.e., the fact and nature of the perjury) and the content of the corrected testimony are such that an acquittal probably would result upon retrial.

(emphasis added). Huddleston expressly reserved for

another day the question of the standard to be used as to claims of

knowing or reckless use by the government of perjured testimony. See

-8- We resolve that question as, we believe, Supreme Court

precedent requires us to do. Although González does not categorize

knowing use of perjured testimony as a Brady type error, we think it is

sufficiently analogous that the Brady error rule should apply to claims

of knowing use of perjured testimony.

The risk that a conviction was brought about by the

government's knowing use of perjury goes to the concerns about fairness

of the trial that animated Kyle. Obtaining a conviction by presenting

testimony known to be perjured "is inconsistent with the rudimentary

demands of justice." Mooney v. Holohan,

(1935);

accord Giglio v. United States,

(1972). In Napue v.

Illinois,

(1959), a pre-Brady case, the Supreme Court said

a new trial is required if "the false testimony could . . . in any

reasonable likelihood have affected the judgment of the jury."

. The Supreme Court has several times referred to the

prosecution's knowing use of perjured testimony as a category of Brady

error, see, e.g., Strickler v. Greene,

(1999);

United States v. Agurs,

(1976), while also

repeating the standard that "a conviction . . . must be set aside if

there is any reasonable likelihood that the false testimony could have

affected the judgment of the jury,"

. In United States v.

Bagley,

(1985), the Court noted that this rule had earlier

been stated as a branch of the harmless error test, but it may be as

-9- easily stated as a materiality standard. See

. And

recent decisions about Brady errors which did not involve knowing use

of perjured materials continue to recognize that such errors are

properly analyzed under Brady, employing the "reasonable likelihood" of

acquittal standard. See Strickler,

(Souter, J.,

concurring in part and dissenting in part); Kyles,

n.7

(citing Agurs,

).

In sum, a court's choice among the standards for analyzing

new trial motions depends upon the ground for the new trial motion.

First, for the non-Brady Rule 33 motion where a defendant seeks a new

trial based on newly discovered evidence (other than evidence that an

adverse witness testified falsely) the inquiry is whether that evidence

(assuming it meets the first three prongs of the Wright test, see

supra) in actual probability would result in acquittal if a new trial

were granted. That test is also used where a new trial motion is

premised upon alleged new evidence that a conviction was obtained by

perjured testimony when the government's use of that testimony was

unwitting. In that situation, Huddleston requires the defendant to

meet the "actual probability of acquittal" standard.

The second category involves the different types of Brady

violation cases, where it is alleged that the government withheld

exculpatory evidence. There, a defendant must show that there is a

"reasonable probability" that the missing evidence would have changed

-10- the result. In contrast, the "reasonable likelihood that the false

testimony could have affected the judgment of the jury" standard

applies where it is alleged that the government knowingly used perjured

testimony to obtain a defendant's conviction. Although the Supreme

Court has not described whether there is a difference between the

"reasonable likelihood" and "reasonable probability" standards, we

believe they are equivalent. In the end, both standards are concerned

with whether defendants received a fair trial resulting in a verdict

worthy of confidence. See Strickler,

(concurring

opinion); see also Webster's Third New Int'l Dictionary 1310 (1993)

(defining "likelihood" as "probability"). As Strickler explains, not

every violation by prosecutors of their duty to pursue truth

"necessarily establishes that the outcome was unjust."

.

We turn to the merits of González's new trial motion.

B. The Alleged Perjured Testimony

1. Testimony of Luz Marina Giraldo

As to Giraldo's testimony, González raises at least a

colorable claim that, if her testimony was perjured, then the

government presented testimony it knew to be perjured.1 González

1 A finding that there is a colorable claim the government knowingly used perjured testimony is the necessary predicate for asking whether the Strickler/Kyle/Bagley standard applies. Here, the district court did not make an express finding about whether Giraldo's testimony was perjured, and thus did not find whether the government's use of the

-11- offered the sworn statement of a co-inmate, Daniel Ortiz Medina, that

Medina had overheard Giraldo telling González that the prosecutor had

pressured her to testify to details about González's involvement in

drug trafficking, even though that testimony was false, and that the

prosecutor told Giraldo that she would receive twenty-five years in

prison if she refused to so testify but would receive only a five year

sentence if she cooperated. The matter of perjury is not a matter of

inference. Rather, the material witness herself is reported to have

said that she was pressured by the government to give false testimony.

An affidavit from a second inmate, Ernesto Padilla Almestica, recounted

the same conversation.

Because González makes a colorable claim that the government

knowingly used perjured testimony by Giraldo, we apply the

Strickler/Kyle/Bagley standard and ask whether there is any reasonable

likelihood or probability that the proffered evidence that Giraldo's

testimony was false could have affected the jury's judgment. We think

not. First, the evidence of perjury is itself weak; it depends on a)

the credibility of two convicted felons, and b) believing that Giraldo,

testimony, if perjured, was knowing. (We have been informed that Giraldo had been deported by the time of the new trial motion and was unavailable to the court.) Instead the court concluded that González failed to show that there was a "reasonable probability" that Giraldo's testimony would result in acquittal. Thus, we cannot avoid the question. Cf. Josleyn,

n.11 (where the district court expressly finds that a defendant has not shown the statements to be perjury, court need not further consider application of lower standard).

-12- having to face González after he was convicted, was not simply making

excuses based on a fiction.

Second, the sheer volume of evidence of González's drug

trafficking and money laundering activities rules out any reasonable

likelihood that the jury's ultimate decision was affected by Giraldo's

testimony. This was not a close case. Several members of González's

organization besides Giraldo testified about numerous occasions during

1991 and 1994 on which González imported drugs from Colombia into

Puerto Rico and directed the distribution of those drugs in Puerto Rico

and New York. Numerous law enforcement agents corroborated specific

events of these drug importation and distribution activities.

Moreover, González's guilt was supported by documentary evidence and

out of his own mouth; there were tape recordings of González making

inculpatory statements about his drug trafficking and money laundering

activities. We also note that Giraldo's alleged recantation indicates

that she lied about González's importation of cocaine, but that she

was, indeed, involved in González's marijuana trafficking activities;

thus, the damage done by Giraldo's purportedly false testimony is

limited to the effect of her testimony about the extent of González's

activities, and does not put into doubt that González was in fact

involved in drug trafficking. Viewing the evidence as a whole

(including the other Brady errors discussed later), there is no

reasonable likelihood or probability that false testimony, if any, by

-13- Giraldo caused the jury to reach an outcome that it might not otherwise

have reached.

2. Testimony of Roberto Garraton

We analyze González's new trial motion based on newly

discovered evidence of allegedly perjured testimony by Garraton under

the traditional Rule 33 "probability of acquittal" standard, as

González does not raise any colorable claim that the government knew

Garraton's testimony to be false, assuming it was false. No inference

of government knowledge of perjury arises from the mere fact of a

convict's hearsay report that a material witness recanted testimony.

The district court cited two infirmities in González's claim.

First, the court "viewed with considerable skepticism" González's

evidence of Garraton's recantations, which consisted of affidavits by

an inmate to whom Garraton allegedly confessed his perjury. More

important, the court doubted Garraton's recantation because his

testimony as to González's role in the drug trafficking conspiracy was

corroborated by other trial witnesses, including law enforcement

officers, and by documentary evidence.

The substantial amount of evidence supporting González's

conviction described above, apart from the testimony of Garraton, means

we cannot say that the district court manifestly abused its discretion

in denying González's motion for a new trial on the basis of evidence

that Garraton testified falsely at González's trial. The district

-14- court has "broad power to weigh the evidence and assess the credibility

of both the witness who testified at trial and those whose testimony

constitutes 'new' evidence." United States v. Montilla-Rivera,

(1st Cir. 1997) (quoting Wright,

).

González argues that the court, at least, should have held

a hearing on the question whether the witnesses' testimony was false.

But in similar circumstances, we have said that a hearing on post-

conviction motions is not necessary where a defendant's claim is

"conclusively refuted as to the alleged facts by the files and records

of the case." United States v. Carbone,

(1st Cir.

1989) (internal quotation marks omitted).2 Here, as the district court

found, ample evidence supports the jury's verdict, and so González has

failed to show that the alleged new evidence of perjury, under either

standard, warrants a new trial.

C. The Alleged Withholding of Evidence/Prosecutorial Misconduct

González's alternative theory in support of his motion for

a new trial is that the government failed to disclose the extent of

Giraldo's cooperation with prosecutors in a case in the Southern

2 We also note that González waited to file his motion until one of the alleged perjurers was no longer within the reach of the court. It appears that the conversations reported were shortly after the 1996 trial, but no motion was filed until June of 1999, three years after trial. (This was also over a year after this court affirmed González's conviction in his appeal from an earlier unsuccessful new trial motion, which was based on, inter alia, faulty jury instructions. See United States v. González-González,

(1st Cir. 1998)). González is in a poor position to complain about a lack of a hearing.

-15- District of Florida, violating its obligations under Brady to produce

to defendants exculpatory and impeachment evidence in its possession.

See Brady,

; see also Bagley,

; Josleyn,

. González also charges the prosecution with misconduct

based on inaccurate statements made to the district court about

Giraldo's cooperation.

The record in this case as to the government's conduct,

dubious perjury allegations aside, is not exemplary. The district

court had good reason for its assumption that the evidence withheld by

the government qualifies as Brady material. Secondly, as discussed

below, the prosecutor was either careless or made a misrepresentation

to the court.

Giraldo testified against González at his trial in February,

1996. Giraldo had entered into a proffer immunity agreement with the

Southern District of Florida United States Attorney's Office on June

29, 1995, as to her criminal conduct in Florida; she was debriefed on

June 30 and July 6, 1995, which debriefing the FBI summarized in a 302

report on July 8, 1995; and on August 22, 1996, Giraldo entered into a

cooperation/plea agreement with the government. The government did not

disclose Giraldo's proffer agreement or the FBI report,3 evidence

3 Not only did the government fail to voluntarily produce the information to González, but also it did not produce the 302 report to the district court (although it did, in a footnote to its reply, offer to produce it for in camera review). Instead, the government submitted an affidavit of an FBI agent stating that the report was limited to

-16- González could have used in an effort to impeach Giraldo's testimony.

Undisclosed impeachment evidence, "if powerful enough, could constitute

grounds for a new trial." United States v. Dumas,

(1st

Cir. 2000).

The question, then, is whether there is a reasonable

probability that the jury, had it known the true extent and earlier

date of Giraldo's cooperation with the government, would have reached

a different verdict. We think not. The jury knew that Giraldo was

cooperating with authorities in Florida. As the district court found,

González "thoroughly cross-examined [Giraldo] as to her cooperation

with the prosecutor's office in Miami" and her credibility was

"impeached by questioning about her expectations of lenient treatment."

United States v. González- González,

(D.P.R.

2000). Thus, the undisclosed evidence was cumulative. Although the

FBI report should have been turned over to González, the fact that it

was not did not deprive him of a fair trial, "understood as a trial

Giraldo's debriefing relative to the Florida indictment. Inexplicably, the government persisted in its contention that the report was not Brady/Giglio material, and at the time of oral argument before this court, still had refused to produce it to González, although the government was unable to identify any reason why the report should not be disclosed. It took an order from this court before the government turned the report over. A criminal defendant is entitled to exculpatory evidence, including impeachment evidence, in the government's possession, and is not expected to take the government at its word as to the materiality of that evidence. Having viewed the report for ourselves, we are satisfied that Giraldo's debriefing was limited to the Florida investigation.

-17- resulting in a verdict worthy of confidence." Strickler,

(internal quotation marks omitted).

That does not end our inquiry, however, as González also

makes a troubling charge of prosecutorial misconduct. The same

government prosecutor who on June 30, 1995, had filed a motion

notifying the court of Giraldo's scheduled debriefing, told the court

on February 7, 1996, during González's trial, that Giraldo "has not yet

been debriefed [in the Florida case] as of yet to my knowledge." Yet

at the time of this statement Giraldo had been debriefed some seven

months earlier. Moreover, González claims that the same prosecutor

failed to correct Giraldo's inaccurate testimony about the timing and

extent of her interactions with the government, which González says the

prosecutor knew to be false.

González's complaint is not frivolous; the prosecution, at

the least, was careless. But the remedy of a new trial is not

necessarily in order whenever a court finds misconduct. "The

determination of whether prosecutorial misconduct has so poisoned the

well that a new trial is required involves the weighing of several

factors: (1) the severity of the misconduct; (2) the context in which

it occurred; (3) whether the judge gave any curative instructions and

the likely effect of such instructions; and (4) the strength of the

evidence against the defendant." United States v. Rodriguez-De Jesus,

(1st Cir. 2000) (internal quotation marks and

-18- citations omitted). Taking a "balanced view of the evidence in the

record,"

we think that the misinformation about the extent and

timing of Giraldo's cooperation, which at best would have provided

further impeachment evidence, did not deprive González of a fair trial

given the volume of evidence in support of his conviction.

The denial of González's motion for a new trial is affirmed.

-19-