97-6365
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID RONALD CHANDLER,
Appellant.
INITIAL BRIEF FOR THE APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
ALABAMA
JOHN R. MARTIN
MARTIN BROTHERS, P.C.
44 Broad Street,N.W.Suite D
500 Grant Building
Atlanta, GA 30303
(404)
522-0400
NATASHA ZALKIN
204 El Reposo Place
Panama City Beach, Fl 32408
(850) 230-0468
United States v. David Ronald Chandler ,
Docket No. 97-6365
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Rule 26.1, Fed.R.App.P. and Eleventh Circuit Rule 26.1-1, 1-2 and 1-3, Appellant submits the following Certificate of Interested Persons:
Barnett, Bill L. -- Assistant United States Attorney
Chandler, David Ronald -- Appellant
Davis, III, Harwell G. -- Assistant United States Attorney
Honorable James H. Hancock -- United States District Judge
Jones, Doug -- United States Attorney
Martin, John R.-- Appellant’s Counsel
Martin Brothers, P.C. -- Appellant Counsel’s law firm
Shuler, Marlin -- Alleged Victim (deceased)
Zalkin, Natasha -- Appellant’s Counsel
STATEMENT REGARDING ORAL ARGUMENT
This appeal is a death penalty case, involving the first death penalty imposed in a United States District Court after Congress reinstituted the federal death penalty in 1987 by passing 28 U.S.C. § 848(e). This case raises significant issues of first impression, including the applicability of Simmons v. South Carolina, 520 U.S. 154 (1994) in the context of a federal death penalty prosecution. This appeal is difficult and complex both legally and factually. Among the claims raised on appeal are (1) whether the Appellant should have been granted a new trial and/or sentencing due to newly discovered evidence, including the recantation of the only witness who tied the Appellant directly to the murder upon which the death sentence was based; (2) whether the Appellant’s convictions and sentence should be set aside due to the suppression by the government of evidence favorable to the Appellant as to guilt/innocence and as to sentence; (3) whether the government knowingly presented substantially misleading testimony both as to guilt/innocence and as to sentence; and (4) whether the Appellant received effective assistance of counsel at sentencing (an issue which the District Court conceded was "a close" question about which "reasonable people could disagree") (R7-457-63). The record in this case is voluminous (9 volumes of pleadings, including 509 separate items, 5 separate orders entered by the District Court, totaling 230 pages, 11 volumes of transcripts of the Appellant’s original trial and 6 volumes of transcripts of evidentiary hearings held during post-conviction proceedings). Given the novelty, complexity and fact-specific nature of the claims raised on appeal, as well as the seriousness and importance of this case, argument of counsel should be of assistance to the Court.
CERTIFICATION OF TYPE SIZE AND STYLE
Pursuant to Eleventh Circuit Rule 28-2(d), Appellant certifies that this Brief is typed in 14 point Times New Roman.
CERTIFICATE OF INTERESTED PERSONS
STATEMENT REGARDING ORAL ARGUMENT
CERTIFICATE OF TYPE SIZE AND STYLE
TABLE OF CONTENTS
2. Ineffectiveness of Trial Counsel at Sentencing
C. STATEMENT OF THE STANDARDS OF REVIEW
A. THE DIFFERENT STANDARDS FOR RELIEF.
C. THE DISTRICT COURT’S FAILURE TO APPLY THE BERRY STANDARD
D. THE WEAKNESSES IN THE CASE FOR CONVICTION AND DEATH.
E. A NEW TRIAL SHOULD BE ORDERED UNDER RULE 33.
F. BRADY AND GIGLIO VIOLATIONS INDEPENDENTLY REQUIRE A NEW TRIAL.
G. INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT PHASE .
H. CUMULATIVE IMPACT OF ALL NEWLY DISCOVERED EVIDENCE RELATED VIOLATIONS.
A. THE PURPOSE OF THE SENTENCING HEARING.
B. INEFFECTIVENESS OF COUNSEL AT SENTENCING.
C. COUNSEL’S DUTY TO INVESTIGATE.
D. THE FAILURE TO CONDUCT ANY SENTENCING INVESTIGATION.
C. THE GOVERNMENT’S FUTURE DANGEROUSNESS ARGUMENTS.
D. THE DISTRICT COURT’S MISINTERPRETATION OF THE RULE IN SIMMONS
CASES
Anderson v. United
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Armstrong v. Dugger, 833
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Baxter v. Thomas, 45 F.3d 1501 (1995)
Berry v. State, 10 Ga.
511 (1851)
Blankenship v.
Estelle, 545 F.2d 510 (5th Cir. 1977)
Bowen v. Maynard, 799 F.2d 593 (10th Cir.
1980)
Blanco v.
Singletary, 943 F.2d 1477 (11th Cir. 1991)
Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985)
Bonner v. City of
Pritchard, 661 F.2d 1206 (11th Cir. 1991)
Brady v. Maryland, 373 U.S. 83 (1963)
Brain v. Wainwright, 785
F.2d 1457 (11th Cir. 1986)
Bussey v. State, 64 S.W. 268 (1901)
California v. Brown, 479
U.S. 538 (1987)
Cave v.
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Chapman v. California, 386 U.S. 18 (1967)
Dupart v. United States,
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Eddings v. Oklahoma, 455 U.S. 104 (1982)
Elledge v. Dugger, 823
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Eutzy v. Dugger, 746
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Griffith v. Kentucky, 479
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Ingram v. Zant, 26 F.3d 1047 (11th Cir. 1994)
Jackson v. Herring, 42
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Johnson v. Dugger, 615 F.Supp. 355, Aff’d 781
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Johnson v. Scott, 68 F.3d 106 (5th Cir. 1995)
King v. Strickland, 714
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Kyles v. Whitley, ___ U.S. ___ 115 S.Ct. 1555
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Larrison v. United
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Lockett v. Ohio,
438 U.S. 586 (1978)
Lockhart v. Fretwell, 586 U.S. 364 (1993)
Martin v. United States,
17 F.2d 973 (5th Cir. 1927)
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Mooney v.
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Morgan v. Illinois, 504 U.S. 719 (1992)
Napue v. Illinois, 360
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Newsom v.
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Penry v. Lynaugh, 492 U.S. 302 (1989)
Porter v. Singletary, 14
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Pyle v. Kansas, 317 U.S. 213 (1942)
Rogers v. Zant, 13 F.3d
384 (11th Cir. 1994)
Simmons v. South Carolina, 520 U.S. 154, 114
S.Ct. 2187 (1994)
Stanley
v. Zant, 697 F.2d 955 (11th Cir. 1983)
State v. Simmons, 427 S.E.2d 175 (S.C. 1993)
Strickland v. Washington,
466 U.S. 668 (1984)
Teague
v. Lane, 489 U.S. 288 (1989)
Thomas v. Kemp, 796 F.2d 1322 (11th cir. 1985)
Thompson v. Wainwright,
787 F.2d 1447 (1986)
Tison
v. Arizona, 481 U.S. 137 (1987)
Tyler v. Kemp, 755 F.2d 741 (11th Cir. 1985)
United States v. Adams,
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United States v. Agurs, 427 U.S. 97 (1976)
United States v. Bagley,
473 U.S. 667 (1985)
United
States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir. 1977)
United States v.
Champion, 813 F.2d 1154 (11th Cir. 1937)
United States v. Chandler, 996 F.2d 1073 (11th
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United States
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United States v. Freeman, 77 F.3d 812 (5th Cir.
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United States v.
Garcia, 13 F.3d 1464 (11th Cir. 1994)
United States v. Gates, 10 F.3d 765 (11th Cir.
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United States v.
Hewitt, 663 F.2d 1381 (11th Cir. 1981)
United States v. Hiss, 107 F.Supp. 128 (S.D.N.Y.
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United States v.
Jackson, 579 F.2d 533 (10th Cir. 1978)
United States v. Johnson, 142 F.2d 588 (7th Cir.
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United States v.
Johnson, 713 F.2d 654 (11th Cir. 1983)
United States v. Lee, 68 F.3d 1267 (11th Cir.
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United States v.
Lopez, 985 F.2d 520 (11th Cir. 1993)
United States v. Mason, 993 F.2d 406 (4th Cir.
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United States V.
Mejia, 82 F.3d 1032 (11th Cir. 1996)
United States v. Morgan, 554 F.2d 31 (2nd Cir.
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United States v.
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United States v.
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United States v. Preciados-Cordobas, 981 F. 3d
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United
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STATUTES PAGE
18 U.S.C. § 3569 et. seq.
21 U.S.C. § 848(e)
21 U.S.C.
§ 848(k)
21 U.S.C. § 848(m)(6)
21 U.S.C. § 848(m)(8)
28
U.S.C. § 1291
28 U.S.C. § 2253
28 U.S.C. § 2255
RULES
Rule 33, Federal Rules of
Criminal Procedure
Rule 404(b), Federal Rules of
Evidence
REGULATIONS
28 C.F.R. §§ 26.1-26.5
SENTENCING GUIDELINES PROVISIONS
U.S.S.G.§ 2A1.1
U.S.S.G. § 2A1.5
ANNOTATIONS
Recantation of Testimony of Witness as Grounds for New Trial-Federal Cases, 94 ALR Fed 60
This case involves appeals of denials by the District Court of claims under Rule 33 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 2255. Jurisdiction to hear the denial on the Motion for New Trial Under Rule 33 is conferred by 28 U.S.C. § 1291. Jurisdiction to hear the appeal of the denial of relief under 28 U.S.C. § 2255 is conferred by 28 U.S.C. § 2253.
I. WHETHER A NEW TRIAL AS TO GUILT/INNOCENCE OR AS TO SENTENCE, IF NECESSARY, SHOULD BE GRANTED UNDER RULE 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE BECAUSE OF SUBSTANTIAL NEWLY DISCOVERED EVIDENCE OF CHANDLER’S INNOCENCE.
II. WHETHER A NEW TRIAL AS TO GUILT/INNOCENCE OR AS TO SENTENCE, IF NECESSARY, SHOULD BE GRANTED BECAUSE OF THE GOVERNMENT’S INTENTIONAL PRESENTATION AT TRIAL OF FALSE OR SUBSTANTIALLY MISLEADING TESTIMONY.
III. WHETHER A NEW TRIAL AS TO GUILT/INNOCENCE OR AS TO SENTENCE, IF NECESSARY, SHOULD BE GRANTED BECAUSE OF THE FAILURE OF THE GOVERNMENT TO DISCLOSE TO THE DEFENSE AT TRIAL IMPORTANT INFORMATION AND EVIDENCE FAVORABLE TO THE DEFENDANT AS TO GUILT/INNOCENCE OR AS TO SENTENCE.
IV. WHETHER A NEW TRIAL AS TO GUILT/INNOCENCE OR AS TO SENTENCE, IF NECESSARY, SHOULD BE GRANTED DUE TO THE INEFFECTIVENESS OF TRIAL COUNSEL DURING THE GUILT/INNOCENCE PHASE OF THE TRIAL.
V. WHETHER A NEW SENTENCING HEARING SHOULD BE GRANTED BECAUSE TRIAL COUNSEL FAILED TO PROVIDE CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL AT THE DEFENDANT’S SENTENCING WHEN HE FAILED TO LOCATE, INTERVIEW AND PRESENT WITNESSES WHO WOULD HAVE TESTIFIED TO THE DEFENDANT’S GOOD CHARACTER AND AS TO NUMEROUS GOOD DEEDS PERFORMED BY THE DEFENDANT.
VI. WHETHER A NEW SENTENCING HEARING SHOULD BE GRANTED BECAUSE DESPITE THE REQUEST OF THE DEFENSE THE JURY WAS NOT TOLD THAT SHOULD THEY NOT RETURN A DEATH SENTENCE VERDICT THE DEFENDANT WOULD BE SENTENCED TO LIFE IMPRISONMENT WITHOUT PAROLE AND THE GOVERNMENT MADE GENERALIZED ARGUMENTS CONCERNING THE DEFENDANT’S ALLEGED FUTURE DANGEROUSNESS, CONTRARY TO THE DECISION OF THE SUPREME COURT IN SIMMONS V. NORTH CAROLINA.
VII. WHETHER THE EXECUTION OF THE DEFENDANT UNDER REGULATIONS PROMULGATED BY THE JUSTICE DEPARTMENT WOULD VIOLATE THE DEFENDANT’S CONSTITUTIONAL AND STATUTORY RIGHTS.
On April 2, 1991, Appellant (hereinafter referred to also as "Defendant", "Mr. Chandler" or "Chandler"), was convicted by a jury in the United States District Court for the Northern District of Alabama on all counts of a nine count indictment charging him with conspiracy to distribute marijuana (21 U.S.C. § 846)(Count I), engaging in a continuing criminal enterprise (21 U.S.C. § 848)(Count II), procuring the killing of an individual in connection with a continuing criminal enterprise ( 21 U.S.C. § 848(e)(1)(A))(Count III), using or possessing a firearm during the commission of an offense (18 U.S.C. § 924(c)(1))(Count IV and V) and laundering of monetary instruments (18 U.S.C. § 1956 (a)(1)(B)(i))(Counts VI through IX). (OCR-115, 219).1 The next day, April 3, 1991, after a sentencing hearing which lasted less than three hours from start to finish, including jury instructions and closing arguments, the jury returned a death penalty verdict on Count III. (OCR-221; TT12-13-100).
On May 14, 1991, Final Judgment and Commitment was entered. The Defendant was sentenced to life imprisonment on Count I, a second concurrent life imprisonment sentence on Count II, the death penalty on Count III, a consecutive term of five years on Count IV, a consecutive term of five years on Count V and concurrent terms of six years on Counts VII through XI. (OCR-253, 254).
Notice of Appeal was filed. (OCR-258). This Court vacated the sentence and conviction on Count I, but affirmed the sentences and convictions on all other Counts. United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993). A Petition for Rehearing and Suggestion for Rehearing En banc was denied. United States v. Chandler, 5 F.3d 1501 (11th Cir. 1993). A Petition for a Writ of Certiorari was denied by the Supreme Court. United States v. Chandler, __ U.S. __, 114 S.Ct. 2724 (1994). A petition for rehearing of the denial for the petition for a writ of certiorari was denied. United States v. Chandler, __ U.S. __, 115 S.Ct. 23 (1994).
On March 20, 1995, the Defendant filed his Motion to Vacate the Defendant’s Convictions and Sentences and for a New Trial Under 28 U.S.C. § 2255 and Rule 33 of the Federal Rules of Criminal Procedure, as well as a supplement to this motion which the Court allowed to be filed under seal. (R1-326, 329, 330, 331). The Defendant was permitted to amend his motion on three occasions. (R3-381; R4-395; R6-442). The Defendant’s motion as amended will hereafter be referred to as the "Motion to Vacate."
After three evidentiary hearings and the consideration of evidentiary proffers and briefs from the parties, the District Court denied all of the claims raised in the Motion to Vacate in five separate orders, totaling 230 pages. (R3-384, R7-456, 457, R9-493, 497). Two of these orders are reported at 950 F.Supp. 1522 (N.D.Ala. 1996) and 950 F.Supp. 1545 (N.D.Ala. 1996). A timely Notice of Appeal was filed on April 28, 1997. (R9-498).
The government’s case at trial essentially consisted of two contentions: (1) that Chandler was involved in growing and distributing more than 1000 kilograms of marijuana and (2) that he procured the killing of Marlin Shuler to protect this marijuana operation. See, United States v. Chandler, 996 F.2d at 1080-82.
With respect to the first claim, the prosecution presented several witnesses to testify to Chandler’s cultivating and distributing marijuana, as well as purchasing marijuana from out of state. The prosecution also offered undercover evidence regarding attempts to purchase marijuana by Chandler. The prosecution could not, however, prove any particular amount of marijuana that could be attributed to Chandler, in part because no marijuana that could be reliably tied to Chandler was ever seized. It, therefore, attempted to satisfy the requirement in the Indictment that Chandler was involved in more than 1000 kilograms of marijuana by reference to possibly braggadocio statements by Chandler as to the amount of marijuana plants he "tried" to plant (not the amount that he actually planted or, more important, reasonably expected to harvest) and mathematical extrapolations from documentary evidence. (R7-457-3-7) (TT3-108-109). When the hard amounts of actual marijuana possessed or distributed are calculated from the government witnesses’ best estimations, estimations which were provided to the government, but never disclosed to the defense, one arrives at a figure of 357 kilograms (R5-403-84, n.4), a significant amount of marijuana, but far short of the 1000 kilograms for which Chandler was convicted and sentenced.
As to Chandler’s alleged involvement with the death of Marlin Shuler, the prosecution’s case was based upon the assumption that Chandler wanted to kill Shuler because Shuler had provided information to police authorities regarding his ex-wife, Donna Shuler, who the government contended was a "dealer" for Chandler. The government claimed that Chandler had arranged for the murder of Shuler by offering Charles Ray Jarrell five hundred dollars to kill Shuler, but acknowledged that no money was ever paid. The government also conceded that Shuler had severely abused Jarrell’s mother and sister (Shuler’s ex-wife), and that Jarrell had previously tried to kill Shuler, shortly before the actual murder, in retaliation for this abuse--a motive obviously unconnected with Chandler’s alleged marijuana activities. 996 F.2d at 1081-1082.
Appellant’s Motion to Vacate raised numerous claims which fall into five general categories. First, Appellant presented to the Court below a substantial body of newly discovered evidence, most important of which is the complete recantation of the trial testimony of Charles Ray Jarrell, the only witness to tie Chandler directly to the murder of Marlin Shuler, which was the basis for the Defendant’s conviction on Count III and the death sentence imposed thereon. Jarrell testified at trial that he killed Shuler for money promised by Chandler. (TT3-222-226; 4-58-59). He now swears that Chandler never offered him money to kill Shuler and that he actually killed Shuler in the midst of an argument about Shuler’s abuse, which argument occurred after the two of them had consumed more than twenty beers each. (R14-22-28). Second, the Defendant presented evidence below of numerous examples of intentional or negligent use by the prosecution of false or misleading testimony, both as to the murder and marijuana related charges, and as to sentencing. Third, the Defendant raised claims and presented evidence regarding the failure of the government to disclose to the defense important exculpatory information known to the government, contrary to its duties under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Fourth, the Defendant raised and was allowed to offer evidence regarding the ineffectiveness of his trial counsel, both as to the guilt/innocence and as to sentencing. Finally, the Defendant has raised various substantive legal challenges to the Defendant’s convictions and sentences, and the implementation thereof, including violations of the Supreme Court holding in Simmons v. South Carolina, 520 U.S. 154 (1994).
The Defendant raised claims and presented evidence below based upon substantial new information and evidence relevant to the Defendant’s guilt or innocence and/or as to his sentences which was not discovered by post-conviction counsel until long after the Defendant’s trial. This evidence is relevant to all of the first four legal claims summarized immediately above. Since this body of evidence generally relates to all four claims, it will be dealt with cumulatively in this section.
The significance of this newly discovered evidence can only be understood within the context of the original facts and circumstances upon which the government sought the Defendant’s convictions and sentence to death in his trial in 1991. As this Court summarized in its decision in United States v. Chandler, 996 F.2d at 1080-1082, there were essentially four evidentiary pillars upon which the government built its case for Chandler’s involvement in the murder of Shuler and for the imposition of the death penalty for that murder. (1) The government contended that "a slip of paper" that contained the words "Bill Broome" (a local attorney) and "copy of police report", which was found in a search of Chandler’s residence, provided compelling documentary proof of a motive for Chandler to kill Shuler, because a search warrant executed on the home of Donna Shuler, one of "Chandler’s dealers", had been based upon information provided by Shuler, who was represented by Bill Broome. (2) The government further relied upon the testimony of Raymond Pointer that he had been offered $5,000 by Chandler to kill Shuler. (3) The government was also allowed to present evidence that at "approximately the same time that Shuler was murdered", Chandler had made statements indicating that he would kill Patrick Burrows and Jeffrey McFry if they kept stealing his marijuana and that these two individuals later disappeared. (4) Finally, and most important, the government presented the testimony of Charles Ray Jarrell, the actual killer of Shuler, that his sole motivation for killing Shuler was because Chandler had allegedly offered him $500 to kill Shuler. This testimony of Jarrell, of course, was crucial to the conviction and sentence. As the District Court recognized in its Orders below, Jarrell’s testimony was "the centerpiece of the government’s evidence linking Chandler to the Shuler murder" (R7-457-9) and the jury "necessarily had to believe Jarrell in order to convict Chandler." (R9-493-41).
Subsequent to trial, newly discovered evidence was discovered by post-conviction counsel which undermines the evidence related to each of these four pillars of the government’s case. Indeed, virtually all of this critical evidence has either been recanted or convincingly disproved by newly discovered evidence.
A. Handwritten Note Found at Chandler Residence.
This piece of paper, sometimes referred to as the "Calvin Klein ad" because the notes were written on a mailed circular, was discovered by post-conviction counsel not to have been written by Mr. Chandler at all. In fact the notes on the paper were written in the handwriting of the Defendant’s wife, Deborah Chandler. More important, the words "Bill Broome" and "copy of police report" written on the piece of paper had nothing to do with Marlin Shuler. Instead, they related to Chandler’s young son, Randall Chandler, who had gotten into trouble with juvenile authorities and the efforts of the Chandlers to select an attorney Broome to handle the matter. Indeed, in addition to "Bill Broome", several other local attorneys names appear in the writing, as well as the name of Alma Turner, Randall Chandler’s juvenile probation officer. These circumstances were convincingly proven at the evidentiary hearing before the District Court by handwriting analysis (R12-37, 312) and by the testimony of Mrs. Chandler (R12-12-19) and Alma Turner (R12-29-36). Indeed, following the presentation of this evidence, the District Court assumed that the writing on the Calvin Klein ad had nothing to do with the search of Donna Shuler’s home. (R7-457-31-32).
B. Testimony of Raymond Pointer.
As this Court noted, Raymond Pointer gave dramatic and colorful testimony that Chandler showed him a brief case full of money and a gun and offered him $5000 to kill Shuler and $10,000 to kill the Chief of Police of Piedmont, Alabama. 996 F.2d at 1081 (TT4-74-83). This testimony, too, has been seriously brought into question by evidence discovered after the trial.
It was known at the time of trial that Pointer had given several inconsistent accounts of his alleged dealings with Chandler. Indeed, Pointer had recanted his original police statement to Mr. Chandler’s trial counsel prior to trial, stating that he had never been offered money by Chandler to kill Shuler but instead had been offered $100 by Donna Shuler to "run off" Shuler. (TT4-92-93;9-20, 9-159-160) (R13-346-350). But, then he proceeded to recant his recantation at trial and returned to his original statement implicating Chandler. The defense had no explanation for this behavior and no response to the prosecution’s closing argument: "Ask yourself why Raymond Pointer would make up a story like he told to begin with." (TT10-157).
It was not known by the defense at the time of trial that the inconsistencies in Pointer statements reflected something more than a wrong-doer likely trying to talk his way out of trouble. However, after the trial it was learned by the defense for the first time that Raymond Pointer had a long and documented history of mental illness, including a mental disorder that causes him to lie compulsively. Although trial counsel was unaware of Pointer’s illness because, as the District Court noted, "Pointer was not simply a habitual liar, but was also skilled at lying in a convincing manner," (R7-457-38-39), we now know that Pointer is seriously mentally ill and, quite literally, a pathological liar. This was proven not only through testimony of Pointer family members, but also through medical records.(R12-6; R13-281-282, 355-427-437; 447-463; 471-480; 481-492; Exhibits 10-21 to October 31, 1995 hearing). Indeed, Pointer told family members prior to trial that, contrary to his trial testimony, Donna Shuler, not Chandler, offered him money to kill Marlin Shuler, a woman named Kathy Jarrell and the Police Chief of Piedmont and even that he himself had killed Shuler. (R13-45, 460-461, 475, 483, 489).
C. The Burrows and McFry Disappearances.
Although Chandler was not charged with the deaths of Burrows and McFry, the government was permitted to present evidence suggesting that Chandler had caused the demise of these two individuals because they had been stealing marijuana from him. 996 F.2d at 1081-1082. This evidence, consisting of the testimony of Melissa McFry and Toby Barnwell, was admitted under Rule 404(b) of the Federal Rules of Evidence allegedly to support the government’s claims that Chandler intended to kill Shuler. It was also admitted as evidence in the sentencing hearing to support the aggravating factor of substantial planning and premeditation. 996 F.2d 1081-1082, 1089-1091. The evidence upon which the government based its claims regarding McFry and Burrows, however, has been seriously undermined by newly discovered evidence.
Melissa McFry testified at trial that Chandler had told her that Aif he caught [Jeff McFry] in his pot patch, he would kill him." (TT4-137). She now swears that this conversation never occurred. In fact, Chandler had never said anything threatening about Jeff McFry and she had given false testimony at Chandler’s trial due to coercion from the prosecution. (R11-12-23).
The other witness to testify about threats allegedly made by Chandler against McFry and Burrows was Toby Barnwell, who testified that Chandler had told him, in the presence of Barnwell’s father, Joe Barnwell, and Junior Shell, that Burrows was now dead and that McFry was going to be next. (TT4-151-152). Joe Barnwell and Junior Shell have now come forward after trial to state that this conversation never took place. (R6-438-32-34). Moreover, it is now known that Toby Barnwell revealed to his brother, at the time of his trial testimony, that the prosecutors had told Toby Barnwell that Ait would really look good about getting my sentence reduced if I could put something in about Burrows and McFry in my testimony." (R6-438-34-35).
Not only has this newly discovered evidence severely undermined the only two witnesses who claimed that Chandler threatened Burrows or McFry, but post-conviction counsel has also discovered substantial evidence indicating that individuals other than Chandler had powerful motives to harm Burrows and McFry and that these individuals are likely responsible for their disappearances. Indeed, post-conviction counsel was able to obtain testimony concerning the confession of Jimmy Steed to the murder of Patrick Burrows, including a surreptitiously recorded conversation with Steed in which he discussed the location of Burrows’ body. (R6-439). In fact, Burrows and McFry had amassed numerous enemies over the years and post-conviction counsel were able to present evidence, of which law enforcement involved in this case was aware, that these suspects had at least equally and often much more compelling and immediate reasons to do Burrows and McFry harm than did Chandler. (E.g.R14-490-129-139 (Testimony of Virgil Michael Bundum); R14-490-139-144 (Testimony of David Fortenberry); R6-438-61-62 (Proffered testimony of Jeff Roberts); R6-62 (Proffered evidence related to Eddie Paris); R6-438-62-63 (Proffered testimony of Randy Heard); R6-438-63 (Proffered Testimony of Frankie Lee Bonner )).
The District Court, nevertheless, discounted the importance of this new evidence regarding the real culprits in the disappearances of McFry and Burrows, claiming that this evidence was presented solely as 404(b) evidence of Chandler’s intent to kill Shuler and that it was "convinced that the jury would probably have returned the same verdict even if it believed that someone other than Chandler had killed Burrows (or McFry)." (R7-456-55; R9-493-41-42). The District Court ignored the fact that since Jarrell was the actual perpetrator of the Shuler killing, Chandler’s "intent" as it related to this murder was the dispositive issue in the case. After all, as the District Court otherwise had correctly observed, "The government’s theory at trial was that the three murders (Shuler, McFry and Burrows) were all actions taken by Chandler to protect his marijuana operation from interference." (R7-456-5, n. 2).
D. Testimony of Charles Ray Jarrell
The primary pillar in the government’s case, of course, was the testimony of Charles Ray Jarrell that Chandler had offered him $500 to kill Marlin Shuler, and that this offer, and this offer alone, was the reason that he had killed Shuler. 996 F.2d at 1081; (TT3-222-226; 4-58-59). As the District Court conceded, Jarrell’s testimony was "the centerpiece of the government’s evidence linking Chandler to the Shuler murder" (R7-457-9) and the jury "necessarily had to believe Jarrell in order to convict Chandler." (R9-473-41). Jarrell has now totally recanted his trial testimony concerning his motivation for killing Shuler, despite the fact that in doing so he risks losing his plea bargain and sentence of 25 years for both his marijuana related activities and the death of Marlin Shuler and subjects himself to a potential state or federal prosecution for the murder of Shuler.
After trial, Jarrell, on his own, contacted post-conviction counsel and admitted that he had lied at Chandler’s trial with regard to the death of Shuler. (R14-82-83). In fact, Jarrell had killed Shuler in an impulsive act after he and Shuler had each consumed almost a case of beer. The shooting had been triggered by a remark made by Shuler dismissing his responsibility for his abuse of Jarrell’s sister and mother, which abuse included, among countless other incidents which are set out at (R6-438-15-21 and attached affidavits of Imogene Johnson, Donna Shuler, Sherry Simpson, Randy Heard and Frankie Lee Bonner), the rape of Jarrell’s sister in front of his mother, the physical assault of Jarrell’s mother while she was immobilized in two full length leg casts, and numerous other beatings. (R14-21-31). Jarrell’s killing of Shuler was not, in fact, the cold-blooded act of a person operating on the orders of Chandler to dispose of a threat to Chandler’s marijuana enterprise, as the government contended at trial. Rather, Jarrell shot Shuler in the midst of an argument relating to Shuler’s abusiveness, in much the same way he had previously attempted to shoot Shuler only a few weeks earlier. 996 F.2d 1082. This prior attempt to kill Shuler, was, of course, totally unrelated to Chandler. (R-14-55-56, 15-277-278; TT4-40; 8-109-112).
Following Jarrell’s recantation, post-conviction counsel discovered substantial additional evidence strongly corroborating Jarrell’s current statement. Numerous family members of Jarrell came forward to testify that Jarrell had told them, at or about the time of his trial testimony, that Chandler had had nothing to do with the murder of Shuler, but that he had to implicate Chandler to save himself and his son. (R14-93-108; Deposition of Inez McDonald, pp. 5-14). Similar testimony, was discovered from inmates who were in jail with Jarrell at the time of his trial testimony. (R14-108-153; R15-373-378; Deposition of Joe Barnett, pp. 5-17). Finally, and perhaps even most important, when the District Court finally ordered an evidentiary hearing regarding the Jarrell recantation issue, the government disclosed to the defense, for the first time, notes of AUSA Davis during the early stages of the investigation which also corroborate that the shooting of Shuler was in the context of an argument, rather than at the behest of Chandler, as Jarrell originally testified. These notes describe an interview with Jarrell at which Jarrell recounted Shuler’s abusiveness and stated that he and Shuler had gone drinking and were drunk when Shuler "called him something and he (Jarrell) shot him." (Defendant’s Exhibit 6 to February, 1997 Evidentiary Hearing, Tab 11 to the Record Excerpts). (R14-154, 275-286).
E. Testimony of Billy Jo Jarrell
Billy Jo Jarrell, Charles Ray Jarrell’s son, was not called as a government witness at trial, but was called by the defense, because instead of corroborating Charles Ray Jarrell’s testimony, Billy Jo Jarrell’s testimony contradicted Charles Ray Jarrell’s testimony on many important points. (TT8-131). For example, Billy Jo Jarrell stated that Chandler had offered his father $5,000 to kill Marlin Shuler, while Charles Ray Jarrell said it was only $500, and Billy Jo Jarrell stated that the money had actually been paid to his father, who had purchased some vehicles with the money, while Charles Ray Jarrell testified that the money had never been paid. (TT8-137-138). Nevertheless, the government argued at trial that this testimony was corroborating evidence of Charles Ray Jarrell’s testimony that he killed Shuler at Chandler’s behest. (TT10-96, 10-164, 12-66). Moreover, the District Court in these proceedings has also pointed to Billy Jo Jarrell’s trial testimony as important testimony corroborating Charles Ray Jarrell’s trial account. (E.g. R7-457-47; R9-493-41).)
Billy Jo Jarrell after trial recanted his trial testimony and disclosed to post-conviction counsel that his trial testimony, which essentially tracked a police statement he had given, was a story that he made up in response to intense interrogation tactics in order to avoid prosecution of himself. (R-11-71-75, 81). Indeed, Billy Jo Jarrell’s statement that Chandler paid his father $5,000 to kill Shuler was in part the result of a telephone call from Billy Jo Jarrell’s mother arranged and monitored by law enforcement in which his mother was told to tell Billy Jo Jarrell that he would "fry in the electric chair", if he did not "cooperate" with the officers and tell them what they wanted to hear. (R6-27-28). The District Court noted in considering Billy Jo Jarrell’s recantation that given the number of stories that Billy Jo Jarrell had given over the years and his own characterization of himself as a "liar", it is impossible to know whether anything that Billy Jo Jarrell has ever stated regarding the Shuler murder, including his trial testimony, is the truth. (R3-384-9-10, n.12 ).
2. Ineffectiveness of Trial Counsel at Sentencing.
The District Court held a two day hearing at which evidence was received regarding the constitutional effectiveness of trial counsel at the Defendant’s sentencing. (R12, 13). As this Court noted in its opinion during the direct appeal, the total mitigation case presented on behalf of the Defendant during the sentencing phase consisted of a stipulation that Chandler had no prior convictions, a stipulation that the state murder charges against Jarrell and Jarrell’s son in connection with the Shuler murder had been dismissed, and the brief testimony of Chandler’s mother and wife. 996 F.2d at 1082. The entire mitigation case presented by the defense consists of only sixteen pages of transcript (R13-29-45) and lasted no more than twenty minutes.
Trial counsel was examined as to why nothing more was presented on the Defendant’s behalf on the issue of sentence. Counsel conceded that both prior to trial and during trial up until the guilty verdict was read on the afternoon of April 2, 1991 (TT11-22), he had done "basically not anything explicit" or Avery little" to prepare for a sentencing hearing. (R13-331, 339, 395). All of his preparation had been devoted to the guilt/innocence phase of the trial and "you do what’s coming up first and you do what’s immediately on you." (R13-395). Moreover, trial counsel believed that, because Jarrell had previously attempted to kill Shuler for his own purposes, the murder case was "the weakest part of the case" and his client would likely be acquitted on the murder charge. Counsel further believed that the death penalty was even more unlikely. (R13-326, 360-361, 400-401).
Accordingly, all trial counsel did to prepare a mitigation case was to ask the Defendant’s wife at approximately 2:30 p.m. (less than an hour after the guilty verdict) on the afternoon prior to the date of the sentencing hearing, which was scheduled for the following day at 9:00 a.m., to try "to get somebody to stand up for Ronnie tomorrow." (R12-20; R13-363, 366, 371, 418, 420). Mrs. Chandler, who had an approximate three hour drive home ahead of her (R13-366, 419), and who was understandably "numb" and "just couldn’t seem to function right" after just witnessing her husband’s conviction for murder (R13-418, 419), was obviously unable to locate on such short notice the types of witnesses necessary to present a "life profile" of Chandler or to describe the type of person that he is and has been. Therefore, the only mitigation witnesses that were presented at the sentencing hearing were the Defendant’s wife and mother, whose total testimony was nothing more than a rudimentary biographical sketch of the Defendant, consisting of only twelve pages of transcript and lasting no more than fifteen minutes. (TT13-33-45). Even these witnesses were not prepared for their testimony by trial counsel until he spent only a few moments with them just prior to the sentencing hearing itself, which began on the morning of April 3, 1991.(R13-372).
If trial counsel had made the most rudimentary of mitigation investigation, he would have located numerous witnesses in the community where Chandler grew up and lived who would have testified that Chandler’s life could not be defined and summed up solely by the evidence presented by the government as to his marijuana related activities, but that Chandler was in fact a compassionate, generous, and caring person who loved to help others; that he was not only non-violent, but extremely forgiving and an active peacemaker; that he had a cheerful, optimistic and encouraging personality--someone who would get you through hard times and make you laugh if you were down; that he was fair, honest and respectful of others; that he was a skilled carpenter, brickmason and contractor, who was not only hardworking himself, but also encouraged others to work hard; that he loved to teach others the skills that he knew; that he was a good family man who was extremely supportive of his own and other children in the community, particularly those who did not have a father; that he was kind and respectful to the elderly; and that he was religious, involved in religious activities, charitable and patriotic. (R12-42-250; R13-251-278).
In addition, witnesses were available who could testify that Chandler’s life was peculiarly distinguished by numerous examples of his unsolicited generosity to others, without expecting anything in return, and kind-hearted encouragement of others when they were in difficult times, including providing food, shelter, clothing, money and work to those suffering hard times, encouraging and uplifting people in times of personal crisis, and remarkable acts of unsolicited kindness, such as building a porch for a disabled person so that he could get in and out of his house, while never being asked and without ever asking or expecting anything in return. This testimony of witnesses who were available, but not called to Chandler’s sentencing hearing because trial counsel failed to conduct any type of meaningful mitigation investigation, was presented during one day of testimony and consumes only a little over two hundred pages. (R12-42-250; R13-251-278). A more detailed description of this testimony is included in the Argument section, but for the Court to get the true flavor of the extraordinary and remarkable nature of this testimony it need read only these approximate two hundred pages.
The defense requested at trial that the District Court inform the jury of the sentence which would be imposed, i.e. life without parole, if the Defendant was not sentenced to death. (OCR-220-No. A-12). The Trial Court refused to give this instruction, to which the defense excepted. (TT12-93-94). Instead, the District Court instructed the jury that they should "not be concerned with the question of what sentence the Defendant might receive in the event you determine not to recommend the death sentence." (TT12-85).
Both during the guilt/innocence phase of the trial and during the sentencing phase of the trial, the government presented evidence and made numerous impassioned arguments directed at convincing the jury that Chandler was a "thoroughly dangerous man" (TT12-57), whose conviction and sentence to death was necessary as a matter of "self-defense." (TT12-75). Specific references to the nature of the evidence presented by the government and the extreme arguments made in support of its future dangerousness contentions are included in the Argument. These facts and circumstances violated the Supreme Court decision in Simmons v. South Carolina, 520 U.S. 154 (1994).
At the time that Chandler was convicted and sentenced to death in April of 1991, Congress had not provided for any method of executing this sentence. 21 U.S.C. § 848(e), enacted in 1987, is totally silent as to a means of execution. Congress has since not legislated a means to execute the Defendant’s sentence of death. The Violent Crime Control and Law Enforcement Act of 1994 (H.R. Rep. No. 711, 103rd Cong.2d Sess. 1994) (18 U.S.C. § 3596 et. seq.) by its terms applies only to persons "sentenced to death pursuant to this Chapter, (Chapter 28 of Title 18)", an entirely new chapter created by the 1994 Act, and not to the Defendants § 848(e) conviction.
Because Congress did not provide for any means of executing a death sentence when it enacted § 848(e) in 1987, the Justice Department, on January 19, 1993, promulgated 28 C.F.R. §§ 26.1-26.5 (the "Regulations"), which purport to specify procedures by which Defendant’s sentence may be implemented, specifically lethal injection. The government has submitted a Proposed Judgment and Order for execution of the death sentence in this case pursuant to the Regulations. (OCR-321). The District Court has indicated its intention to execute such an order. (OCR-320; R7-457-98-104).
C. STATEMENT OF THE STANDARDS OF REVIEW.
I. Newly Discovered Evidence.
Whether the District Court properly formulated and applied the correct standard for judging whether newly discovered evidence requires a new trial under Rule 33 is a question of law about which this Court has plenary review. This Court reviews a district court’s denial of Rule 33 relief when the district court has used the correct standard under an abuse of discretion standard of review. United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995); United States v. Gates, 10 F.3d 765, 767-68 (11th Cir. 1993).
II. Giglio violations.
The standard of review is whether the prosecutor’s failure to correct false evidence may have had an effect on the outcome of the trial. United States v. Lopez, 985 F.2d 520, 523 (11th Cir. 1993).
III. Brady violations.
A district court’s conclusion that no Brady violation occurred is subject to de novo review. United States v. Mejia, 82 F.3d 1032, 1036 (11th Cir. 1996).
IV. Ineffectiveness of counsel at Sentencing.
Ineffectiveness of counsel claims, both as to performance and prejudice, are mixed questions of law and fact for which appellate review is plenary. Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
V. Simmons Claims.
The standard of review is whether or not the District Court correctly formulated and applied the applicable law in determining if a constitutional violation occurred, and, if the Defendant’s constitutional rights were violated, whether such error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967).
VI. The Means of Execution.
The Defendant’s claims raise issues of law about which the Court’s standard of review is plenary.
I. NEWLY DISCOVERED EVIDENCE.
Substantial newly discovered evidence of the Defendant’s innocence was discovered after trial by post-conviction counsel, including the total and unequivocal recantation of Charles Ray Jarrell, the sole witness directly implicating Chandler in the death of Marlin Shuler, a witness whose testimony the District Court held the jury "necessarily had to believe...in order to convict Chandler." (R9-493-41). Jarrell’s current testimony is supported by, among other circumstances, statements made by Jarrell to the prosecution prior to trial that his shooting of Shuler immediately followed "words" that he had with Shuler while both of them were excessively inebriated, which statements were never revealed to the defense or the jury. Instead, Jarrell testified for the government that he killed Shuler solely at the behest of the Defendant and without any immediate provocation.
This newly discovered evidence, along with other important newly discovered evidence, seriously undermines the evidence upon which this jury based its verdicts for conviction and death. The evidence requires a new trial and sentencing, if necessary, under Rule 33 of the Federal Rules of Evidence, but the District Court denied Rule 33 relief by not applying the correct Rule 33 standard in this Circuit. This evidence also requires a new trial and sentencing, if necessary, due to violations of the Due Process Clause, because of the government’s intentional presentation of false or misleading testimony and its suppression of material evidence favorable to the defense. Finally, this new evidence reveals that trial counsel was constitutionally ineffective.
II. INEFFECTIVENESS OF COUNSEL AT SENTENCING.
Trial counsel’s representation at sentencing was deficient, because he totally failed to do any mitigation investigation until after the Defendant was convicted. The Defendant was substantially prejudiced by this deficient performance, because if only the most rudimentary of mitigation investigation had occurred, trial counsel would have been able to locate and call as mitigation witnesses numerous substantial members of the community who would have testified to the Defendant’s good character and extraordinary instances of good deeds performed by the Defendant over his life time. The failure to present this evidence denied the Defendant an individualized sentencing based upon his character, background and crime and resulted in an unreliable sentencing determination in which the Court can have no confidence. Accordingly, a new sentencing hearing should be ordered.
III. SIMMONS VIOLATION.
The prosecution argued for the death penalty in this case in part because of the claimed future dangerousness of the Defendant. Given this argument, the defense asked for an instruction that should the jury not sentence the Defendant to death he would then be sentenced to life without parole. The District Court refused this request, to which the defense excepted. The refusal to give the instruction concerning the alternative sentence to death in the circumstances of this case violated the holding in Simmons v. South Carolina, 520 U.S. 154 (1994).
IV. THE MEANS OF EXECUTION.
In passing 21 U.S.C. § 848(e), Congress authorized the death penalty but did not provide for a method of execution. This defect in § 848(e) cannot be corrected by Justice Department Regulations. Congress did not authorized the Justice Department to provide for such regulations and even if it had it would be an unconstitutional delegation of congressional authority. The Regulations also violate the Administrative Procedures Act and the Bill of Attainder and Ex Post Facto prohibitions of Article I, Section 9 of the Constitution.
A. THE DIFFERENT STANDARDS FOR RELIEF.
In the proceedings below, the Defendant raised numerous claims based upon substantial new information and evidence relevant to the Defendant’s guilt or innocence and as to sentence which was first discovered by post-conviction counsel long after the Defendant’s trial, including most significantly the total, unconditional and consistent recantation of the trial testimony of the only witness directly tying Chandler to the death of Shuler. This information supported four distinct types of claims for relief.
First, to the extent that the Defendant could show that the prosecution knowingly presented false or substantially misleading testimony leading to the Defendant’s convictions and sentence, the Defendant was entitled to have his convictions and sentences set aside under the Due Process Clause, based upon a long line of cases, beginning with Mooney v. Holohan, 294 U.S. 103 (1935) and including cases such as Pyle v. Kansas, 317 U.S. 213 (1942), Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150 (1972). See United States v. Agurs, 427 U.S. 97, 103 (1976). Under these claims, referred to by the District Court as Giglio claims (e.g. R7-456-3), the Defendant’s convictions and sentence must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. at 103.
Second, this newly discovered evidence also supported claims of violations of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, due to the failure of the government to disclose to the defense at the time of trial evidence favorable to the Defendant both as to guilt/innocence and as to sentencing, which was known to the prosecutors or "to the others acting on the government’s behalf in the case, including the police." Kyles v. Whitley, ___ U.S. ____, 115 S.Ct. 1555, 1567 (1995). In this situation, the Supreme Court has borrowed the prejudice standard for ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 694 (1984), for determining when relief is required. The failure to disclose Brady-type material requires a new trial either as to guilt/innocence or as to sentence "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); Kyles v. Whitley, 115 S.Ct. at 1566. The Supreme Court has defined the "reasonable probability" required as "a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 678; Kyles, 115 S.Ct. at 1566.
Third, to the extent that this newly discovered evidence should have actually been discovered and presented by trial counsel, it supports a claim for relief due to ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668 (1984). The prejudice standard is the same as for a Brady violation. Id. at 694.
Finally, the information and evidence discovered by the defense after trial also supported the granting of a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, which authorizes the District Court to grant a new trial "in the interest of justice" based upon newly discovered evidence. This Court has repeatedly asserted a five-part test for determining when a new trial or sentencing is required due to newly discovered evidence. In order to prevail under Rule 33, a defendant must show that A(1) the evidence was in fact discovered after trial; (2) the defendant exercised due care to discover the evidence; (3) the evidence was not merely cumulative or impeaching; (4) the evidence was material; and (5) the evidence was of such a nature that a new trial would probably produce a different result." United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995).
Although there are similar components in each test, the standards for judging Giglio, Brady, Rule 33 and ineffective assistance of counsel claims are also significantly different. Unfortunately, however, the District Court did not rigorously distinguish these standards in judging whether or not the evidence presented by the defense supported relief under each separate framework and, hence, failed to apply the standards correctly. This failure to distinguish the different standards depending upon the claim raised was especially egregious in connection with the Defendant’s Rule 33 claims.
The five-part test for judging a Rule 33 violation which has been adopted by this circuit is known as the Berry test and is derived from the decision of the Georgia Supreme Court in Berry v. State, 10 Ga. 511, 527 (1851). See, United States v. Freeman, 77 F.3d 812, 816 (5th Cir. 1996); Annotation, Recantation of Testimony of Witness as Grounds for New Trial-Federal Criminal Cases, 94 ALR Fed 60, 64-66. The Berry test has a strict standard of prejudice, i.e. the newly discovered evidence must be "of such a nature that a new trial would probably produce a different result," but does not require that the defendant convince the District Court of the "truth" of the newly discovered evidence or, when the newly discovered evidence is recanted testimony, that the recanted testimony is more likely the truth than was the trial testimony. All that a defendant need show is that a jury hearing all the evidence, including all the newly discovered recanted testimony, would "probably" have reached a different verdict, either as to guilt/innocence or sentence. At the guilt phase, the question is: Would the newly discovered evidence probably have created a reasonable doubt in the jurors’ minds that was not there before. At the penalty phase, the question is: Would the newly discovered evidence probably have tipped the balance between aggravating and mitigating factors. In neither case is the defendant required to persuade the District Court that the newly discovered evidence is, in fact, true or that recanted testimony is more likely true than the trial testimony.
The Berry test has been distinguished from the so-called Larrison test, established in Larrison v. United States, 24 F.2d 82 (7th Cir. 1928), which is employed by some other circuits. 94 ALR Fed. 60, 66-67. Under the Larrison test, if the Court finds that trial testimony was in fact perjury based upon newly discovered evidence, then a new trial is required when that testimony "might" have affected the result. Therefore, under the Larrison test, the defendant gets the benefit of a lower standard of prejudice, similar to the Giglio standard of prejudice, when the Court makes an affirmative finding that the trial testimony was perjurious, i.e. the newly discovered evidence must only "might" have affected the result. If the Court considering the newly discovered evidence does not make this finding, then the stricter standard of the Berry test, i.e. the newly discovered evidence "would probably produce a different result", applies. See United States v. Johnsons, 142 F.2d 588, 591-592 (7th Cir. 1944); United States v. Hiss, 107 F.Supp. 128, 136 (S.D.N.Y 1952); United States v. Jackson, 579 F.2d 533, 556-557 (10th Cir. 1978). Thus, even under the Larrison test, which has never been specifically adopted in this Circuit, if the Court does not find that the trial testimony was perjury due to the newly discovered evidence, it does not end the process. Instead, the Court should then turn to see if the newly discovered evidence satisfies the stricter standard of Berry.
C. THE DISTRICT COURT’S FAILURE TO APPLY THE BERRY STANDARD
Although in its December 17, 1996 Order the District Court correctly cited the five-part Berry test utilized in this Circuit for judging a Rule 33 claim (R7-456-48), inexplicably it failed to apply this standard. Instead of determining whether the newly discovered evidence (which otherwise satisfied the first four prongs of the Berry test) as a whole was of "such a nature" that it would "probably produce a different result", either as to guilt/innocence or as to sentence, the Berry standard applicable in this Circuit, the District Court denied Rule 33 relief because of its conclusion that it personally did not believe each particular item of newly discovered evidence, apparently applying its own version of the Larrison standard, which is not even the test in this Circuit. Moreover, the District Court compounded this error by considering each piece of newly discovered evidence in isolation and never judged the cumulative impact of all of the newly discovered evidence on the jury’s verdicts.
1. Charles Ray Jarrell’s Recantation.
With regard to the recanted testimony of Charles Ray Jarrell, the District Court stated that it was required to "assess the credibility of the various witnesses who testified, particularly Charles Ray Jarrell" (R9-493-15). Then, the District Court determined, based upon its view of the evidence, that "Jarrell manipulates his account of events to suit his then-present motives", which "speaks poorly about the credibility of his testimony at the hearing." (R9-493-19-20). As a result, the District Court concluded that the Defendant had "failed to carry his burden of showing that Jarrell’s trial testimony was false." (R9-493-31-32). This analysis was obviously error. Instead of applying the Berry test of this Circuit, the District Court applied its own version of the Larrison test, which requires a defendant to prove that the trial testimony was false. Under the proper test, the defendant need only show that the newly discovered evidence would result in a different verdict.
This failure to apply the correct Rule 33 standard was especially egregious with regard to the testimony of Charles Ray Jarrell, which the District Court conceded was "the centerpiece of the government’s evidence linking Chandler to the Shuler murder" (R7-457-9). The District Court acknowledged that the jury "necessarily had to believe Jarrell in order to convict Chandler." (R9-493-41). Now that Jarrell has totally recanted that testimony, an obvious reasonable doubt about his trial testimony exists which did not exist before, making probable a different result, and, therefore, requiring a new trial when the Berry standard is properly applied. This failure of the District Court rigorously to apply the correct standard in judging the Defendant’s Rule 33 claims alone requires reversal of the District Court’s rulings on these claims.
2. Billy Jo Jarrell’s Recantation.
This same error was made regarding the District Court’s evaluation of Billy Jo Jarrell’s recantation. The District Court stated that "it would be virtually impossible to be su