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United States v. Ruzicka

United States District Court, D. Minnesota

February 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JEROME C. RUZICKA (1), SCOTT A. NELSON (2), W. JEFFREY TAYLOR (3), LAWRENCE W. MILLER (4), and LAWRENCE T. HAGEN (5), Defendants.

          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.

          John C. Conard, JOHN C. CONARD PLLC, for defendant Jerome C. Ruzicka.

          Casey T. Rundquist and William J. Mauzy, MAUZY LAW PA, for defendant W. Jeffrey Taylor.

          Paul C. Engh, for defendant Lawrence W. Miller.

          Kevin J. Short, for defendant Lawrence T. Hagen.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Defendants 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.

         DISCUSSION

         I. STANDARD OF REVIEW

         The 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).

         In 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.

         Since 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) (emphasis added).

         To 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)).

         With 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)).

         The 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.

         The 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 (1985)).

         II. AUSTIN'S TESTIMONY

         A. Statements Contradicted by Nelson and Longtain

         First, 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 case-in-chief.

         However, 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.

         To be 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.

         B. Statements Contradicted by Government Agents

         Second, 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.)

         1. Kinney

         Miller 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.[1] 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.

         On January 23, 2018, Brian Kinney testified as follows on cross-examination:

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 it's true?
A. He told us they were shredded, so I take that as a belief, yes.
Q. He told you that and you took it as a belief?
A. Yes.
Q. Without confirmation?
A. That he destroys ...

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