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Card v. United States6/28/2001
rnal citations and quotations omitted). Under this theory, appellants allege that the testimony of Stanford and Bears was not only false and misleading, but "carefully crafted" by the prosecutor as such. To succeed in this claim, appellants bear the burden of establishing that: (1) the prosecution's case included false testimony; (2) the prosecution knew, or should have known, of the falsehood; and (3) that the false testimony could have affected the judgment of the jury. See Napue, supra, 360 U.S. at 269-71; United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).
In an effort to expose Stanford's false testimony, appellants rely on the fact that after Stanford testified, her INS detainer was lifted, a sentencing departure letter was filed on her behalf, and she only received probation on her pending charges, even though on the stand she had denied that she was promised particular leniency above a possible departure letter. However, the prosecutor, before the trial judge, denied that the government had unconditionally agreed to file a departure letter or to intercede with regard to her deportation status. In addition, Stanford had already testified to the possibility of future government intervention on her behalf in terms of her pending sentences. See supra text accompanying notes 23-25. Finally, we note that the " mposition of [a lesser] sentence does not, of itself, establish that [a witness] had been promised preferential treatment by the government." Townsend v. United States, 512 A.2d 994, 999 (D.C. 1986), cert. denied, 481 U.S. 1052 (1987). Thus, Stanford's eventual sentence and her immigration posture alone cannot suffice as evidence of false or misleading testimony. Because appellants have failed to demonstrate that Stanford's testimony was actually false or misleading, the claimed Napue violation fails.
In asserting the Napue violation in the context of Bears' testimony, appellants point to Bears' denial that the government promised any favors to him other than use immunity, including his inability to remember whether the prosecutor in this case appeared at his sentencing. Appellants rely on transcripts which show that the prosecutor had appeared at one of Bears' prior sentencing hearings, as well the fact that, after he testified, Bears received a lenient sentence. However, although the prosecutor admitted his presence at Bears' prior sentencing hearing, he explained that the government had taken no affirmative action to reduce Bears' sentence. Indeed, the transcripts which assertedly evidence promises of government involvement are equivocal, neither squarely contradicting the prosecutor or Bears' testimony, nor presenting any direct evidence of an agreement beyond the immunity to which Bears testified. The fact that Bears did eventually receive a reduced sentence is insufficient to overcome the trial court's acceptance of the government's assurance that no other agreement had been reached. See Townsend, supra, 512 A.2d at 999 (lesser sentence is not per se evidence of agreement); Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991) ("It is incumbent upon us, in this case as in any other, to eschew appellate fact-finding."); Dickerson v. United States, 677 A.2d 509, 512 (D.C. 1996) ("We . . . will not disturb the trial court's factual findings unless they are clearly erroneous or not supported by the record."). In any event, even if we were to assume that Bears' testimony was indeed inaccurate in some particular, the untruthfulness was harmless in light of his testimony as a whole, which intimated to the jury significant government involvement in Bears' past and pending cases and exposed significant credibility issues on cross-examination. See Hawthorne, supra, 504 A.2d at 593 (base
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