United States District Court, D. Minnesota
Gregory G. Brooker, Interim United States Attorney, and
Benjamin F. Langner, Lola Velazquez-Aguilu, and Surya Saxena,
Assistant United States Attorneys, UNITED STATES
ATTORNEY'S OFFICE, for plaintiff.
C. Conard, JOHN C. CONARD PLLC, for defendant Jerome C.
T. Rundquist and William J. Mauzy, MAUZY LAW PA, for
defendant W. Jeffrey Taylor.
C. Engh, for defendant Lawrence W. Miller.
J. Short, for defendant Lawrence T. Hagen.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT.
Jerome Ruzicka, W. Jeffrey Taylor, Lawrence Miller, and
Lawrence Hagen have been charged in connection with the
alleged embezzlement of funds from Starkey Laboratories.
Citing the Supreme Court's decision in Napue v.
Illinois, 360 U.S. 264 (1959), Miller - joined by his
co-defendants - moves for the Government to correct false
testimony presented by Government witnesses. The alleged
perjured statements fall in two categories: (1)
contradictions between the testimony of Starkey CEO William
Austin and other fact witnesses and (2) contradictions
between the testimony of Austin and Government agents.
Because the Court concludes that the Defendants have not
shown that the Government has knowledge about the truth
underlying the contradictions between Austin and other fact
witnesses, the Court will deny Miller's motion with
respect to this category of alleged perjuries. However,
because the Court concludes that the Government has knowledge
about two specific instances of perjury related to
contradictions between the testimony of Austin and the
Government agents, the Court will grant Miller's motion
in part and order the Government to correct these statements
pursuant to its constitutional duty under Napue.
STANDARD OF REVIEW
prosecution's use of false testimony to obtain a
conviction is a violation of due process. Napue, 360
U.S. at 269. When false testimony arises during the course of
trial, “[t]he duty to correct false testimony is
on the prosecutor, and that duty arises when the
false evidence appears.” See United States
v. Foster, 874 F.2d 491, 495 (8thCir. 1988)
(emphasis added) (applying the Napue rule).
Napue v. Illinois, the Supreme Court of the United
States acknowledged that “it is established that a
conviction obtained through use of false evidence,
known to be such by representatives of the State, must fall
under the Fourteenth Amendment.” 360 U.S. at
269 (emphasis added). “The same result obtains when the
State, although not soliciting false evidence, allows
it to go uncorrected when it appears.”
Id. (emphasis added). This principle holds true even
when the false testimony “goes only to the credibility
of the witness.” Id.
Napue, the Supreme Court has reaffirmed that
“[a] new trial is required if ‘the false
testimony . . . could in any reasonable likelihood have
affected the judgment of the jury.” Giglio
v. United States, 405 U.S. 150, 154 (1972) (quoting
Napue, 360 U.S. at 271) (alteration in original)
prove a Napue violation, the defendant must show
“(1) the prosecution used perjured testimony; (2) the
prosecution should have known or actually knew of the
perjury; and (3) there was a reasonable likelihood that the
perjured testimony could have affected the jury's
verdict.” United States v. West, 612 F.3d 993,
996 (8th Cir. 2010) (quoting United States v.
Bass, 478 F.3d 948, 951 (8th Cir. 2007)).
respect to the first element, “[m]erely inconsistent
statements do not establish use of false testimony.”
West, 612 F.3d at 996. “[I]t is not improper
to put on a witness whose testimony may be impeached.”
Id. (quoting United States v. Bass, 478
F.3d 948, 951 (8th Cir. 2007)). The jury is
responsible for resolving these conflicts in testimony by
assessing the credibility of the witnesses. Id. at
996-97 (citing United States v. Thompson, 560 F.3d
745, 748-49 (8th Cir. 2009)).
second element is established if “the government
knowingly, recklessly or negligently used the false
testimony.” United States v. Tierney,
947 F.2d 854, 860-61 (8th Cir. 1991). “[N]o
constitutional violation occurs when the government has no
reason to believe that the testimony was false.”
United States v. Nelson, 970 F.2d 439, 443
(8thCir. 1992). There is no Napue
violation where the Government knows of factual
inconsistences, but not which statement is the truth.
Bass, 478 F.3d at 951. In Bass, the Eighth
Circuit found that there was no Napue violation
because “defense counsel knew at least as much as the
government did, if not more, about the [the witness's]
prior inconsistent statements and was able to subject his
testimony to cross-examination on each material point.”
Id. From the Court's review of the case law,
Napue violations often turn on this second element.
See, e.g., Bass, 478 F.3d at 951;
United States v. Perkins, 94 F.3d 429, 432-33
(8th Cir. 1996); Nelson, 970 F.2d at 443.
third element is established unless the “failure to
disclose [the fact that the testimony is perjured] would be
harmless beyond a reasonable doubt.” United States
v. Duke, 50 F.3d 571, 577 (8th Cir. 1995)
(quoting United States v. Bagley, 473 U.S. 667, 678
Statements Contradicted by Nelson and Longtain
Miller identifies nine contradictions between the testimony
of Austin and other fact witnesses. (Napue Mot. at
3-5, Feb. 25, 2018, Docket No. 366.) In particular, Miller
argues that the Government should have known of the falsity
of Austin's testimony because it was contradicted by the
testimony of Scott Nelson, Jeff Longtain, and other
Government fact witnesses. (Id.) The Court
acknowledges that many of these inconsistencies are
egregious, particularly because all of the inconsistencies
stem from only the Government's
on this record, the Court concludes that it has no reason to
believe that the Government knows which of these
contradicting statements are false. See West, 612
F.3d at 996-97. As far as the Court is aware, the Government
has as much information as Defendants about the conflicting
testimony of Austin and the other Government witnesses.
See Bass, 478 F.3d at 951. In order to correct the
false testimony, the Government would have to know which
statement is false. In short, the Court does not believe that
the Government knows how to correct the inconsistent
testimony so that the record reflects reality.
Foster, 874 F.2d at 495. Accordingly, the Court
concludes that this is a question of credibility for the
jury. West, 612 F.3d at 996-97. Because the Court
concludes that Defendants have not shown that the Government
knows which of the witnesses perjured themselves, the Court
will deny the motion in this regard.
clear, the Court is not holding that the
Government does not have the obligation to correct these
statements if it knows which are false. The Court is merely
denying the Napue Motion with regard to these
particular inconsistencies because Miller has not satisfied
the second element. See West, 612 F.3d at 996-97. If
the Government has knowledge that
any of its witnesses perjured
themselves, it is required to
disavow the perjured testimony and
correct the testimony. The Court will
therefore generally order the Government to correct any
testimony that it knows is false, consistent with its
constitutional duty under Napue and its progeny.
Foster, 874 F.2d at 495.
Statements Contradicted by Government Agents
Miller identifies two contradictions between the testimony of
Austin and two Government agents. (Napue Mot. at 6.)
First, Miller argues that Austin perjured himself by
testifying that he did not tell Agent Brian Kinney that he
shredded the descending gross income reports. (Id.)
Second, Miller argues that Austin perjured himself by
testifying that Ruzicka drafted an amendment to his
employment contract and that this amendment was discussed,
drafted, and signed in one day. (Id.) Curiously, the
Government's response to Miller's motion does not
address the contradictions between the testimony of Austin
and the two Government agents. (Gov. Resp. to Napue
Mot. at 1-8, Feb. 26, 2018, Docket No. 372.)
argues that the Government knows that either Austin or Kinney
perjured himself because the Government knows whether Austin
told Kinney that he shredded the descending gross income
reports. The Court will conclude that the
Government knows or should know which statement is false and,
therefore, has a constitutional duty to correct the perjured
testimony. Foster, 874 F.2d at 495.
January 23, 2018, Brian Kinney testified as follows on
Q. The next claim that was made in your search warrant
application was that Bill Austin liked to shred these
descending gross reports. Do you remember making that?
A. I believe that's what he informed us.
He would destroy them.
Q. Well, you repeated the claim in your search warrant
application under oath. Do you or do you not believe that
A. He told us they were shredded, so I take that as a
Q. He told you that and you took it as a belief?
Q. Without confirmation?
A. That he destroys ...