United States v. McCarty

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-60046

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

PAUL MARTIN McCARTY,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of Mississippi
(3:96-CV-429-LN)

March 22, 1999
Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:*

Paul Martin McCarty, federal prisoner # 03463-043, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion. We affirm.

I.

McCarty was charged and convicted by jury on two counts of

bank robbery, in violation of 18 U.S.C. § 2113(a), and one count

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
of using a firearm during a bank robbery, in violation of 18 U.S.C.

§ 924(c). McCarty was sentenced to two 175-month concurrent terms

on each of the bank robbery counts, and a 60-month consecutive term

on the firearm offense, for a total of 235 months. McCarty

appealed, and this Court affirmed McCarty’s conviction and sentence

in October 1994. United States v. McCarty, 36 F.3d 1349 (5th Cir.

1994).

In June 1996, McCarty filed this 28 U.S.C. § 2255 motion

seeking relief from his conviction and sentence. The district

court denied relief and denied McCarty’s motion for

reconsideration. This Court granted a limited certificate of

appealability. On appeal, McCarty alleges: (1) that the government

suppressed impeachment evidence relating to government witness Alan

Lucero’s criminal history, in violation of his Fifth Amendment Due

Process right and the principles articulated in Brady v. Maryland,

83 S. Ct. 1194 (1963); (2) that the government knowingly used

perjured testimony from Lucero, in violation of his Fifth Amendment

Due Process right and the principles articulated in Napue v.

Illinois, 79 S. Ct. 1173 (1959); and (3) that the district court

impermissibly impaired his constitutional right to cross-examine

and impeach Lucero by publishing an erroneous calculation of the

benefit Lucero received in exchange for his testimony against

McCarty to the jury, in violation of his Sixth Amendment

Confrontation right and the principles articulated in Davis v.

Alaska, 94 S. Ct. 1105 (1974). We affirm the district court’s

decision denying relief.

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 II.

The government presented thirty-three witnesses and fifty

exhibits tying McCarty to the crimes with which he was charged at

trial. The quantum of evidence tying McCarty to his crimes is

material to our decision that McCarty has not alleged any error

affecting his substantial rights, and is therefore not entitled to

relief on his § 2255 motion.

Two days before Christmas in 1992, a man costumed in a black

wig, a baseball cap, a fake beard and moustache, coveralls, white

tennis shoes, and gloves entered the Sunburst Bank on Lakeland

Drive in Jackson, Mississippi carrying a black zipper bag. The man

handed the teller a demand note and then gestured for the teller to

empty both of her cash drawers. The robber gestured to waive the

teller away from the security bait bills and dye pack. A

subsequent audit of the teller’s drawer revealed that the robber

made off with $13,816.

Five days later, a silver Ford Thunderbird that had been

reported missing by Hertz Rent-A-Car’s Jackson International

Airport location was recovered from the parking lot of an office

building off of Lakeland Drive in Jackson. From the trunk of the

Thunderbird the police recovered a black wig, a baseball cap, a

fake beard and mustache, coveralls, and white tennis shoes, as well

as a .38 caliber revolver and a white clasp 8" X 10" envelope

containing .38 caliber practice rounds. The Thunderbird showed no

signs of forced entry. Law enforcement officers therefore

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suspected that the car might have been stolen by someone who had

access to a key. Hertz rental records established that Paul

McCarty, the defendant in this action, had rented the silver

Thunderbird on November 23, and returned the car on November 30.

McCarty was the only recent local renter of the vehicle.

On December 29, 1992, six days after the robbery, McCarty

purchased a brand new blue 1993 Chevrolet pick-up truck. McCarty

made a sizeable cash down payment of $7,295.01 and received a

$1,500 trade-in allowance against the $18,272.01 purchase.

Testimony at trial established the McCarty was employed at an

annual salary of approximately $20,000.

On January 21, 1993, McCarty rented a maroon Lincoln from the

Avis Rent-A-Car location in Meridian, Mississippi. McCarty checked

the car out at 12:15 p.m. and returned it 30 minutes later, at

12:45 p.m. McCarty drove a total of five miles in the car.

Sometime prior to January 31, 1993, the maroon Lincoln rented by

McCarty disappeared from the Avis lot.

On February 11, 1993, Jan Mickelberg and her sister were in

their home on Autumn Oaks Drive in Jackson. Autumn Oaks is located

in a residential area near the Magnolia Federal Bank. About 9:00

p.m. something triggered motion detectors in Mickelberg’s driveway

and her outside lights came on. Mickelberg looked out her window

and observed a blue pickup truck that she did not recognize in her

driveway. As Mickelberg watched, the truck pulled out of the

driveway with its lights off and parked on Mickelberg’s street. A

man, later identified at trial as McCarty, walked to a ditch at the

4
dead end of Mickelberg’s street. The man stayed near the ditch for

a few minutes before walking to the opposite end of the street and

leaving the neighborhood on foot. About fifteen minutes later,

while Mickelberg and her sister were sitting on her porch, the man

returned, started the truck, drove to the end of the street without

turning on his lights, and left.

The next day, a man wearing a black wig, a baseball cap, a

fake beard and moustache, coveralls, and tennis shoes, and carrying

a satchel, robbed the Magnolia Federal Bank near Mickelberg’s

house. The robber approached teller Jeannette Chase and told her

he needed a money order. The robber simultaneously handed Chase a

typewritten note stating “this is a robbery.” Chase got up to get

the money order from another teller’s window, but then froze when

she read the typewritten note. The robber saw Chase freeze and

went to the second teller’s window, then pulled a gun from his

coveralls and pointed it at Chase, screaming at her to cooperate.

The robber collected $15,475 from three tellers, pointing the gun

at each and ordering them to empty their cash drawers before

fleeing the bank on foot.

Bank customer Bruce Dent was sitting in his car outside the

bank as the robber fled. Dent testified that the robber fled on

foot, dropping his baseball cap in the street. The robber then

mounted a bicycle. When Dent closed in on the bicycle, the robber

abandoned the bicycle and began rummaging in the satchel he was

carrying, spilling more than $8,000 on the ground in the process.

Eventually, the robber pulled out a gun and Dent retreated behind

5
some cars. Dent heard two shots fired. At the same time, Dent

observed a Jeep rapidly reversing from the area where the robber

was last seen and the shots were fired. Law enforcement officials

investigating the robbery later recovered the robber’s demand note,

his grey baseball cap, and the spilled cash.

In the meantime, McCarty’s fingerprints were found to be on

the white clasp 8" X 10" envelope recovered with the disguise used

in the Sunburst robbery from the stolen Thunderbird that he had

previously rented. A warrant was issued for McCarty’s arrest, and

for a search of his apartment and his blue pick-up truck. Among

the items seized were two sets of keys found in McCarty’s truck.

III.

McCarty was arrested and detained at the Madison County

Detention Center. During this time, McCarty shared a communal cell

with Alan Lucero. McCarty shared certain information about his

crimes with Lucero. Lucero relayed that information to law

enforcement.

Lucero told the authorities that McCarty admitted to both the

Sunburst and Magnolia bank robberies. Lucero told authorities that

McCarty said he had rented a silver Thunderbird and a maroon

Lincoln and duplicated the keys for both cars. Lucero told

authorities that the silver Thunderbird had been rented at the

Jackson airport, while the maroon Thunderbird had been rented in

Meridian. McCarty told Lucero that he had worn a disguise

including a wig in both robberies, and that he had used a nylon

6
stocking cap to prevent his own hair samples from being left in the

wigs. Lucero described the Sunburst robbery, and said that after

the robbery McCarty had driven the Thunderbird to an office

building where McCarty’s work truck was parked. McCarty told

Lucero that at the parking lot he transferred the disguise and

other items used in the robbery to the trunk of the Thunderbird and

then left the car in the parking lot, leaving in his work truck.

Lucero also described the Magnolia robbery. Lucero said that

McCarty told him he had “jacked a shell in the chamber” of a .45

caliber weapon when the teller froze. Lucero described how McCarty

had to dump money on the ground after the robbery to gain access to

the weapon. Lucero told law enforcement that McCarty had described

firing shots at a Jeep that was pursuing him. McCarty told Lucero

that he used the maroon Lincoln to escape, and then parked the car

at a restaurant while he drove his own truck home to clean up.

Lucero said McCarty told him that McCarty later returned to the

restaurant and transferred the disguise, weapons, and other items

used in the Magnolia robbery to the trunk of the Lincoln. McCarty

then drove the Lincoln to an apartment complex adjacent to his own

and parked the Lincoln in the adjacent lot in a location that could

be observed from McCarty’s own apartment. Lucero said that McCarty

told him he had moved the car often in the days before his arrest

to avoid suspicion. McCarty also said that the car was still

parked in the adjacent lot and had not been disturbed when McCarty

was arrested at his apartment.

McCarty told Lucero that the keys to the Lincoln had been

7
seized when his truck was searched, but that McCarty’s lawyer could

get the keys back. Lucero thought he might be released on bond to

care for his ailing mother. When Lucero conveyed this information

to McCarty, McCarty proposed a plan by which Lucero would get the

keys to the Lincoln, and use the disguise in the trunk to pull

another robbery. That way, McCarty reasoned, police would be lured

into believing that the robber was still on the loose. Lucero told

law enforcement that McCarty said there was a padlock on the floor

of the Lincoln. The key to the padlock was supposed to be on one

of the key rings seized from McCarty’s truck. McCarty told Lucero

to be sure and remove the padlock from the Lincoln.

Lucero also told law enforcement that McCarty said McCarty

used a .45 caliber semi-automatic firearm, a .38 caliber revolver,

and a .22 caliber revolver in the robberies. McCarty told Lucero

that the .45 and the .22 were in the trunk of the Lincoln.

McCarty told Lucero that he had secured these weapons in

residential burglaries of a one-story and a two-story house in a

specified neighborhood. McCarty said he had tried to use credit

cards stolen in these robberies and that certain merchants had

refused him. McCarty told Lucero that he intended to harm these

merchants and other potential witnesses against him if he could

arrange it. Lucero said his concern for the welfare of these

potential witnesses and his belief that McCarty was serious about

carrying out these threats caused him to come forward with the

information.

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 IV.

Using Lucero’s information, police quickly located the maroon

Lincoln previously rented by McCarty and subsequently reported

stolen. Law enforcement had no knowledge of the Lincoln or its

role in the Magnolia robbery before Lucero came forward with

information about McCarty’s crimes. The Lincoln was found parked

at an apartment complex adjacent to McCarty’s. The Lincoln was

visible from McCarty’s apartment. Keys fitting the Lincoln were

found on one of the key rings seized from McCarty’s truck. On the

floor of the car, police recovered a padlock. A key fitting the

padlock was discovered on one of the key rings seized from

McCarty’s truck. From the trunk of the car, police recovered the

typewriter used to type the demand note recovered from the Magnolia

robbery, the wig and fake beard and moustache worn during the

Magnolia robbery, the coveralls worn during the Magnolia robbery,

a .45 caliber semi-automatic firearm with a loaded clip, a .22

caliber revolver, and a black shoulder holster. Consistent with

Lucero’s information, neither of the wigs used in the Sunburst and

Magnolia robberies contained hair samples that could be matched to

McCarty. Further, the firearms seized from the silver Thunderbird

and the maroon Lincoln were later determined to be firearms stolen

in two residential burglaries in the area identified by Lucero.

V.

Lucero had arrived at the Madison County Detention Center in

January 1993, about one month before McCarty, and about three weeks

9
before the Magnolia robbery. There is no allegation that McCarty

and Lucero were acquainted prior to that time. Lucero was charged

with one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g) and § 924(a)(2), and one count of

possession of the same firearm, a sawed-off shotgun included in the

definition given at 26 U.S.C. § 5845(a)(2), in violation of 26

U.S.C. § 5861(d). Both of the counts alleged against Lucero carry

a statutory maximum sentence of ten years. See 18 U.S.C.

§ 924(a)(4); 26 U.S.C. § 5871.

Lucero provided information and later testified against

McCarty at trial in exchange for more favorable treatment in the

disposition of his own case. Lucero testified that he had arranged

a plea bargain in which the government would dismiss count 2 in

exchange for his guilty plea on count 1 before he approached law

enforcement with the information about McCarty. When Lucero

delivered the information about McCarty, the government agreed to

ask for a downward departure with respect to count 1, provided

Lucero cooperated fully and testified against McCarty at trial.

Lucero and the government executed a memorandum of understanding.

In that document, the government’s agreement to move for dismissal

of count 2 was added by hand after the document was prepared, which

is consistent with Lucero’s testimony that the dismissal of count

2 had already been arranged and was separate from the agreement to

offer leniency in exchange for Lucero’s testimony against McCarty.

The structure of and language used in that agreement is likewise

consistent with Lucero’s testimony that the dismissal of count 2

10
did not form part of the reward he received for testifying against

McCarty. For example, the agreement does not set forth Lucero’s

understanding with respect to the statutory penalty applicable to

count 2, as it does for count 1. Lucero’s memorandum of

understanding is part of the record in this case, and the agreement

was read to the jury in full during McCarty’s trial.

Lucero was sentenced months before McCarty’s trial began.

Lucero pleaded guilty to count 1, and count 2 was dismissed. The

government moved for, and the district court granted, a four-level

downward departure with respect to count 1. The government’s

motion for downward departure is part of the record in this case,

and the existence of and grounds for that motion were disclosed to

the jury at McCarty’s trial. Because of ex post facto concerns,

Lucero’s sentence was determined on the basis of the 1990 version

of the sentencing guidelines rather than the guidelines in effect

at the time of sentencing. McCarty’s counsel attended Lucero’s

sentencing.

McCarty’s appellate arguments relating to the reward Lucero

received for his testimony against McCarty are dependant upon

certain intricacies involved in the calculation of Lucero’s

sentence under the sentencing guidelines. It is therefore

necessary for us to set forth in some detail the basis upon which

Lucero was sentenced.

Lucero’s sentence for count 1, charging that Lucero was a

felon in possession of a firearm in violation of 18 U.S.C. §

922(g), was determined using U.S.S.G. § 2K2.1. The 1990 version of

11
§ 2K2.1 provided a base offense level of 12 for § 922(g)

violations. The district court reduced that base offense level by

two levels for acceptance of responsibility and by four levels

pursuant to the government’s motion, yielding a base offense level

of 6. Lucero had 15 criminal history points, which yielded a

criminal history category of VI. Under the 1990 guidelines, an

offense level of 6 and a criminal history category of VI yielded a

range of 12 to 18 months. The district court presiding over

Lucero’s case imposed an 18 month sentence. The statement of

reasons for sentence entered by Lucero’s sentencing court was

introduced into evidence and made the subject of testimony at

McCarty’s trial. The criminal judgment against Lucero was also

introduced into evidence at McCarty’s trial.

Lucero was not, of course, sentenced on count 2, which the

government agreed to dismiss. Notwithstanding evidence that the

government agreed to dismiss count 2 before Lucero approached law

enforcement about McCarty, and notwithstanding the fact that there

was no factual predicate for Lucero’s conviction on count 2 or for

any within guideline adjustments with respect to count 2, McCarty’s

counsel was permitted to explore the effect of the dismissal of

count 2 on Lucero’s sentence, and the jury was permitted to

consider the dismissal of count 2 as part of the consideration

Lucero received for testifying against McCarty.

VI.

At McCarty’s trial, Lucero testified in a manner consistent

12
with his earlier statements to law enforcement and McCarty was

convicted. McCarty’s claims in this § 2255 action all relate to

Lucero’s testimony. Specifically, McCarty maintains that the

government suppressed information that Lucero had four, rather than

two, prior felony convictions and that the government knowingly

used Lucero’s perjured trial testimony that he had only two prior

felony convictions. McCarty also maintains that the district court

and the government published an erroneous calculation of Lucero’s

reward for testifying against McCarty to the jury which impaired

his Sixth Amendment right to cross-examine Lucero.

Neither Lucero’s identity as a repeat player in the criminal

justice system nor the fact that he received favorable treatment

from the government in exchange for his testimony was concealed at

trial. Indeed, the prosecution opened Lucero’s direct testimony by

revealing Lucero as a convicted felon who was testifying in

exchange for more favorable treatment. Lucero testified that he

was currently serving an 18 month sentence for a federal felon in

possession of a firearm offense, but that he would have received a

much longer sentence but for his cooperation with law enforcement

and subsequent trial testimony against McCarty. Lucero testified

in particular that he thought his sentence would have been five or

six years longer if he had not cooperated with law enforcement.

Lucero testified that he had used quite a few aliases in the past

to evade law enforcement and “stay out of jail.” With respect to

prior convictions, Lucero testified that he had two prior felonies,

in addition to the conviction for which he was incarcerated: (1) a

13
1981 Colorado larceny conviction, for which he served two and one

half years, and (2) a 1987 Colorado attempted forgery charge, for

which he served three years. Lucero further testified that he had

an extensive history of drug use, but that he had not used drugs

since 1992, when he was incarcerated on a drug use charge.

On cross-examination, McCarty’s counsel attempted to impeach

Lucero’s testimony by underscoring Lucero’s criminal history and by

emphasizing that Lucero’s favorable plea bargain gave him a strong

incentive to provide damaging testimony against McCarty. McCarty’s

counsel began by having Lucero read the government’s two-count

indictment against Lucero into the record. The indictment, which

charged felon in possession of a firearm and possession of the same

firearm, includes the two prior state convictions identified by

Lucero as the factual predicate of the felon in possession charge.

Having established those prior convictions, McCarty’s counsel then

elicited Lucero’s agreement that, because count 1 and count 2 each

carried a statutory maximum penalty of ten years imprisonment,

Lucero could have been sentenced to a period of twenty years

imprisonment, instead of the 18 month period of imprisonment

actually imposed. Lucero then testified again that his

understanding of the potential sentencing range before he agreed to

provide information about McCarty had been between six and eight

years. McCarty’s counsel clarified that those figures were based

upon Lucero receiving good time credit, and therefore serving only

eighty-five percent of his time. McCarty’s counsel then had Lucero

read the entire text of the memorandum of understanding entered

14
into between Lucero and the government into the record. That

reading informed the jury again that the potential statutory

penalty for Lucero’s conviction on count 1 was ten years. Lucero

was also quizzed with regard to his basic agreement with the

government; that is, that the government would seek a downward

departure with respect to count 1 in exchange for Lucero’s

testimony. Although the memorandum of understanding also recited

that the government would seek dismissal of count 2, Lucero

testified that the government had previously agreed to dismiss

count 2 in exchange for Lucero’s guilty plea. McCarty’s counsel

then used the NCIC “rap sheet” provided by the government to cross-

examine Lucero about prior convictions and aliases. McCarty’s

counsel was able to reinforce the jury’s knowledge that Lucero had

been incarcerated on a drug charge in 1992 and to elicit that

Lucero also had a prior misdemeanor conviction for assault.

McCarty’s counsel introduced the government’s motion for downward

departure with respect to count 1, as evidence that Lucero’s

agreement with the government was consummated. McCarty’s counsel

also introduced a copy of the district court’s statement of reasons

for the sentence imposed upon Lucero, and a copy of the criminal

judgment against Lucero. McCarty’s counsel then attempted to

enhance the jury’s impression of Lucero’s self-interested

motivation for testifying by introducing a letter drafted by Lucero

to one of his girlfriends, in which Lucero expressed the belief

that he could have faced 30 years in prison without the deal

offered by the government.

15
 On redirect, the government attempted to mitigate somewhat the

substantial demonstration of Lucero’s incentive to testify against

McCarty. The government explored the sentencing court’s statement

of reasons for imposing an 18 month sentence on Lucero. Lucero

testified that the offense level applicable to his offense was 10

before the government’s motion for downward departure, and 6 after

the government’s motion for downward departure. Lucero testified

that he had 15 criminal history points and a criminal history

category of VI. The government then asked the district court to

take judicial notice of the fact that a base offense level of 10

and a criminal history category of VI carried a guideline range of

24 to 30 months. After ascertaining that there was no objection

from the defense, the district court took judicial notice that a

base offense level of 10 and a criminal history category of VI

would yield a sentence of 24 to 30 months. Shortly thereafter, the

district court instructed the jury that it was permitted, but not

required, to accept any judicially noticed fact as conclusive.

At the close of Lucero’s testimony, McCarty’s counsel asked

the district court to take judicial notice concerning the

application of the sentencing guidelines to count 2 of the

indictment against Lucero. During a bench conference, the district

court expressed reservation about the need for doing so in light of

Lucero’s testimony. McCarty’s defense counsel nonetheless urged

the district court to apply the guidelines before the district

court to Lucero’s indictment to reach a guideline range. The

district court once again expressed reservation, this time about

16
the accuracy of any such a determination made without the benefit

of a probation officer. During further discussion, the district

court stated that Lucero’s two firearm offenses would probably

merge for sentencing purposes, because they involved the same

weapon. McCarty’s counsel did not object to the district court’s

supposition that the guidelines would not produce a longer range

for both counts, but instead indicated agreement, stating that he

“had overlooked the fact it was the same weapon” in both counts.

The district court thereafter informed the jury that the dismissal

of count 2 would not have any effect on the guideline range,

because the same guidelines applied to both counts.

Assuming, as McCarty does on appeal, that the dismissal of

count 2 formed part of the consideration given to McCarty for his

testimony against McCarty, then this judicial instruction was in

error. The parties agree that, under either the 1990 guidelines

applicable to Lucero’s conviction, or the 1992 guidelines referred

to the district court at McCarty’s trial, Lucero’s conviction on

count 2 would have resulted in a higher base offense level, and

thus a longer sentence, than the sentence applicable to Lucero’s

conviction on count 1 alone.

During closing argument, the government argued that Lucero’s

deal with the government was not so favorable that it would provide

Lucero with a strong incentive to provide false testimony.

Specifically, the government argued that Lucero received an 18

month sentence when he could have been sentenced to 30 months.

McCarty’s counsel responded that Lucero believed he might get 30

17
years before he made his deal with the government. McCarty’s

counsel argued that Lucero’s own belief about the potential penalty

was more probative of his motivation for testifying than a

technical application of the sentencing guidelines. McCarty’s

counsel also pointed out that the government could still prosecute

Lucero on count 2 if it was not pleased with Lucero’s testimony.

In rebuttal, the government responded that, even if Lucero still

faced prosecution on count 2, his sentence would not exceed 30

months.

The district court then instructed the jury. The jury

instructions included strong limiting instructions with respect to

Lucero’s testimony. The district court instructed the jury that it

could consider a witness’s prior convictions for felonies or crimes

involving dishonesty or false statements as a factor when weighing

the credibility of the witness. The district court also instructed

the jury that the testimony of an informant who receives a reduced

sentence in exchange for testimony “must always be examined and

weighed by the jury with greater care and caution than the

testimony of ordinary witnesses.”

VII.

In August 1995, many months after this Court affirmed his

conviction on direct appeal, McCarty filed a pro se letter

requesting that the district court conduct an in camera inspection

of Lucero’s federal presentence report to determine whether Lucero

had felony convictions in addition to those that were disclosed in

18
Lucero’s testimony. The district court initially denied that

motion on the basis that McCarty had not filed any § 2255 motion

for relief, but agreed to review Lucero’s PSR after McCarty filed

a motion for reconsideration documenting Lucero’s criminal history.

The district court’s order reviewing Lucero’s PSR recognizes

that Lucero did indeed have a third felony conviction, a 1987

Colorado conviction for theft, in addition to the 1981 Colorado

larceny conviction and the 1987 Colorado attempted forgery

conviction to which Lucero admitted at trial. The district court

observed, however, that McCarty could not prevail on a § 2255

motion claiming that Lucero committed perjury. The district court

noted that the sentences for Lucero’s two 1987 convictions were

served concurrently, and that Lucero’s objections to his own PSR

indicate that Lucero thought the two 1987 felonies were

sufficiently related as to form the same offense, at least for

sentencing purposes. In June 1996, McCarty filed this § 2255

motion.

VIII.

McCarty claims that the government suppressed evidence that

Lucero had prior felony convictions in addition to the 1981 larceny

conviction and the 1987 attempted forgery conviction. See Brady v.

Maryland, 83 S. Ct. 1194 (1963). When the government suppresses

material evidence that is favorable to the accused after a request

to disclose the same, the conviction is secured in violation of the

Due Process clause and cannot stand. Id. at 1196-97. To establish

19
a due process violation under Brady, McCarty must establish: (1)

that the prosecution suppressed evidence, (2) that was favorable to

the defense, and (3) material to the issue of guilt or punishment.

See, e.g., United States v. Freeman, 164 F.3d 243, 248 (5th Cir.

1999); United States v. Aubin, 87 F.3d 141, 148 (5th Cir. 1996);

United States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991).

McCarty also claims that the government knowingly used

Lucero’s perjured testimony that he had only two prior felony

convictions at trial. See Napue v. Illinois, 79 S. Ct. 1173

(1959). A conviction obtained through the use of evidence known to

be false by the prosecution likewise violates the Due Process

clause and cannot stand. Id. at 1177. The Napue principle holds

true without regard to whether the prosecution affirmatively offers

false evidence, or instead merely allows false evidence to go

uncorrected. Id. To establish a due process violation under

Napue, McCarty must establish (1) that Lucero’s testimony was

false, (2) that the state knew it was false and nonetheless

permitted the testimony to remain unchallenged, and (3) that the

testimony was material. See Creel v. Johnson, 162 F.3d 385, 391

(5th Cir. 1998); Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir.

1994).

Brady and Napue apply when the suppressed evidence concerns

the credibility of a witness, as well as when the suppressed

evidence directly concerns the guilt or punishment of the accused.

See Napue, 79 S. Ct. at 1177 (“The principle that a State may not

knowingly use false evidence, including false testimony, to obtain

20
a tainted conviction . . . does not cease to apply merely because

the false testimony goes only to the credibility of the witness.”);

United States v. Kopycinski, 64 F.3d 223, 225 (5th Cir. 1995)

(“Brady encompasses evidence that may be used to impeach a

witness’s credibility.”). In either event, however, the suppressed

evidence must be proven material.

"The mere possibility that an item of undisclosed information

might have helped the defense, or might have affected the outcome

of the trial, does not establish `materiality’ in the

constitutional sense." United States v. Agurs, 96 S. Ct. 2392,

2400 (1976). Evidence is material, for the purpose of alleged due

process violations under Brady and Napue, when there is a

reasonable probability that the outcome of the trial would have

been different if the evidence had been disclosed to the jury.

Kyles v. Whitley, 115 S. Ct. 1555, 1565 (1995); United States v.

Bagley, 105 S. Ct. 3375, 3383 (1985); Freeman, 164 F.3d at 248. “A

`reasonable probability’ is a probability sufficient to undermine

confidence in the outcome” of the defendant’s trial. Bagley, 105

S. Ct. at 3383. The defendant need not demonstrate that he would

have been acquitted if the evidence had been disclosed. Kyles, 115

S. Ct. at 1565-66. The question is not whether admission of the

evidence would have changed the verdict, but whether the defendant

received a fair trial in the absence of the suppressed evidence.

Id. at 1566. Stated differently, the test is whether the excluded

evidence can “reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Id.

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 IX.

Our materiality inquiry is applied to the suppressed evidence

collectively, and not item by item. Spence v. Johnson, 80 F.3d

989, 994 (5th Cir. 1996); Kopycinski, 64 F.3d at 226. Thus, it

becomes important to identify the body of evidence that McCarty

alleges was suppressed or made the subject of false testimony.

McCarty identifies Brady and Napue error arising out of Lucero’s

mistaken testimony that he had only two prior felony convictions.

McCarty alleges that contrary to Lucero’s testimony, he actually

had at least four prior felony convictions: (1) the 1981 Colorado

larceny conviction Lucero admitted to at trial; (2) the 1987

Colorado attempted forgery conviction Lucero admitted to at trial;

(3) the 1987 Colorado theft conviction identified in the district

court’s order reviewing Lucero’s PSR; and (4) a 1992 Colorado

conviction for use of a controlled substance. McCarty argues that

the government either knew or should have known about the

additional prior convictions. The government relies upon affidavit

testimony from the prosecuting attorney that his knowledge of

Lucero’s criminal history came from the NCIC rap sheet, which

apparently did not include those convictions, and witness

interviews with Lucero.

We note in passing that the record does not support the

proposition that the government knowingly suppressed Lucero’s

criminal history or knowingly permitted Lucero to falsely testify

concerning his criminal history. In addition, there are

considerable problems with characterizing the 1992 Colorado

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conviction for use of a controlled substance as admissible evidence

of a prior felony conviction that Lucero should have disclosed.

First, the 1992 conviction is listed on Lucero’s PSR as a pending

charge, rather than a conviction. That charge is not included in

the PSR’s calculation of criminal history points or category. That

charge formed no part of the sentencing court’s calculation of

Lucero’s guideline range. Moreover, aside from the PSR’s fleeting

statement that “use of a controlled substance” is a “Class 5

felony,” there is no support in this record for the proposition

that the offense should have been, but was not, considered a felony

for the purpose of determining Lucero’s guideline range. There is

no evidence that the conviction, if final at all, would have been

admissible for the purpose of impeaching Lucero. Finally, Lucero

testified at McCarty’s trial that he had been incarcerated in 1992

on a drug charge, and never asserted in any way that he was

innocent of the charge. Indeed, Lucero admitted he had an

extensive history of drug abuse that ended when he was incarcerated

on that charge. Thus, the offense was not suppressed, and

McCarty’s counsel could have cross-examined Lucero on the

disposition of that case. Even if the 1992 charge concluded with

a final conviction, that fact would have added little to Lucero’s

testimony that he had been incarcerated on the charge. In sum, we

have substantial reservations about relying upon the suppression of

the 1992 use of a controlled substance charge as a predicate for

error in this case. We will nonetheless assume, for the purposes

of this opinion, that Lucero’s testimony erroneously failed to

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disclose both the 1987 Colorado theft conviction and the fact that

Lucero’s incarceration in 1992 concluded with a felony conviction

for use of a controlled substance.

McCarty also argues, much less directly, that the government

suppressed information concerning the effect that the dismissal of

count 2 against Lucero had on the reward that Lucero received for

testifying against McCarty. We have already identified Lucero’s

uncontroverted testimony that the dismissal of count 2 was

negotiated before he offered information against McCarty.

Nonetheless, we will assume, for purposes of McCarty’s Fifth

Amendment claims, that the dismissal of count 2 formed part of

Lucero’s reward for providing information about and testifying

against McCarty. Thus, the evidence allegedly suppressed includes:

(1) Lucero’s 1987 Colorado theft conviction; (2) Lucero’s 1992

Colorado use of a controlled substance conviction; and (3)

information relating to the effect of the dismissal of count 2

against Lucero on Lucero’s actual sentence. Having identified the

precise evidence that McCarty alleges was suppressed, we proceed to

an analysis of whether this evidence was material to the jury’s

judgment of McCarty’s guilt.

Materiality “depends almost entirely on the value of the

evidence relative to other evidence mustered by the State” at

trial. Spence, 80 F.3d at 995. “‘[W]hen the testimony of a

witness who might have been impeached is strongly corroborated by

additional evidence supporting a guilty verdict, the undisclosed

evidence is generally not found to be material.’” Spence, 80 F.3d

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at 995 (quoting Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.

1994)); see also Kopycinski, 64 F.3d at 226 (“When the withheld

evidence seriously undermines or impeaches a key witness’s

testimony on an essential issue, we look to whether the testimony

was strongly corroborated by other evidence.”). Moreover,

suppressed evidence is much less likely to be material when it is

merely cumulative of other impeachment evidence presented at trial.

Spence, 80 F.3d at 995.

The district court relied on these principles to find that the

additional impeachment evidence identified by McCarty was not

material because it could not have feasibly affected the outcome of

McCarty’s trial. We review that determination de novo, see

Freeman, 164 F.3d 243, and affirm.

X.

We begin by noting that the physical and testimonial evidence

against McCarty was overwhelming. Much of that evidence was

derived directly from information Lucero gave law enforcement long

before trial. Prior to the time that Lucero came forward, law

enforcement was completely unaware that a Lincoln had been used in

the Magnolia robbery. Lucero’s information led police directly to

the vehicle, which was found as Lucero said it would be in the

parking lot next to McCarty’s apartment, in a place visible from

McCarty’s apartment. Lucero correctly identified the color of the

Lincoln, as well as the fact it had been stolen from the Meridian,

Mississippi Avis Rent-A-Car location, where it had been previously

25
rented for 30 minutes by McCarty. Lucero correctly identified the

contents of the Lincoln, including the disguise, the padlock, and

the make of the weapons discovered there. Lucero’s information led

authorities to connect the keys taken from McCarty’s truck to the

stolen Thunderbird and Lincoln used in both the Sunburst and

Magnolia robberies. Lucero’s information that the weapons found in

the Thunderbird and Lincoln were obtained in residential burglaries

of a specified area permitted the prosecution to link McCarty with

the weapons found in the Lincoln. In sum, Lucero’s pretrial

information permitted the authorities to develop substantial

physical and testimonial evidence tying McCarty to the crimes with

which he was charged. By the time of trial, Lucero’s testimony was

helpful, but far from essential, for conviction.

Lucero’s trial testimony was consistent with his earlier

statements, and was strongly corroborated at trial with the

consistent physical and testimonial evidence. Bank customer Bruce

Dent corroborated Lucero’s testimony that McCarty had dropped money

on the ground and fired shots at a Jeep when fleeing the Magnolia

robbery. F.B.I. agent Willie Covington corroborated Lucero’s

testimony as to the location and contents of the Lincoln. Victims

of McCarty’s residential burglaries corroborated Lucero’s testimony

that the guns used in the Sunburst and Magnolia robberies had been

stolen from their homes. Indeed, virtually every aspect of

Lucero’s trial testimony was independently corroborated by another

state witness at trial. In such a circumstance, we are loathe to

find an incremental increase in already abundant impeachment

26
evidence material. See Kopycinski, 64 F.3d at 226 (strong

corroboration of witness’s testimony made his testimony essentially

unimpeachable).

That is particularly true when, as here, the testifying

witness’s credibility and motivation for testifying were thoroughly

explored at trial. This is not a case in which the government

represented Lucero to be an upstanding citizen free of any flaw or

improper motive. To the contrary, the government disclosed, at the

outset of its direct examination, that Lucero was presently

incarcerated on federal charges, that Lucero had two prior state

felony convictions, that Lucero had an extensive history of drug

abuse, that Lucero had been incarcerated for a drug charge in 1992,

and that Lucero had made extensive use of aliases to evade law

enforcement. The government also established that Lucero had

received a more lenient sentence in exchange for his cooperation

with the government on McCarty’s case. Indeed, the government

elicited testimony that Lucero believed his sentence had been

reduced by as much as five or six years as a result of his

agreement to provide information and testimony about McCarty’s

crimes.

McCarty’s cross-examination of Lucero on these points was not

in any way restricted, either by the government’s objections or by

the trial court’s rulings. On cross-examination, McCarty’s counsel

restated Lucero’s criminal history and elicited at least one other

prior conviction for assault. McCarty’s counsel also elicited

27
Lucero’s agreement that he could have been sentenced to twenty, or

even thirty, years if the government had not agreed to make a deal

in exchange for Lucero’s testimony against McCarty.

After Lucero testified, the jury heard from the district court

that the dismissal of count 2 would not have had any effect on

Lucero’s sentence, and argument from the government that Lucero’s

reward for testifying amounted to only a one year reduction in

sentence. The jury also heard McCarty’s counsel argue that

Lucero’s subjective belief, that he could receive twenty or thirty

years, was more probative of his motivation for lying than the

guideline computation. See United States v. Landerman, 109 F.3d

1053, 1063 (5th Cir.) (“What tells, of course, is not the actual

existence of a deal, but the witness’ belief or disbelief that a

deal exists.” (internal quotation omitted)), modified on reh’g on

other grounds, 116 F.3d 119 (5th Cir.), cert. denied, 118 S. Ct.

638 (1997). All of these comments were fair comments on the

evidence before the district court.

McCarty argues that there is nonetheless error because the

parties now agree that, under the applicable 1990 guidelines, the

district court’s instruction that the dismissal of count 2 would

not have had any effect was factually in error. Indeed, the

parties appear to agree that Lucero faced a pre-departure guideline

range of 24 to 30 months on count 1 alone, and that Lucero would

have faced a pre-departure guideline range of 57 to 71 months if he

had pleaded guilty to both counts 1 and 2. The district court was

apparently led into factual error on this point by reliance upon

28
the 1992 guidelines rather than the 1990 guidelines.

But the district court’s instruction that the dismissal of

count 2 would not have had any effect is of no use to McCarty.

McCarty’s counsel consented, on the record, to the district court’s

reliance on the 1992 guidelines. Moreover, McCarty’s counsel

invited the district court to apply those guidelines superficially

to Lucero’s indictment. When the district court expressed

reservation about engaging in such speculation without the

assistance of a probation officer, McCarty’s counsel insisted that

the application be made. That was a reasonable trial strategy at

the time, and McCarty cannot now be heard to complain that among

the various ranges argued to the jury for the purpose of

quantifying Lucero’s reward, the one given by the district court at

counsel’s urging was factually incorrect.

Given that Lucero’s testimony was essentially unimpeachable in

light of the overwhelming body of evidence independently

corroborating Lucero’s testimony, presentation of evidence that

Lucero actually had two more convictions, in addition to the three

disclosed convictions and the disclosed incarceration on a drug

charge, would have been cumulative and of little effect with

respect to Lucero’s credibility. Similarly, further elaboration on

the technical application of the sentencing guidelines to Lucero’s

potential exposure on a charge to which he never pleaded guilty

would have been cumulative in this case as to the substantial

documentary and testimonial evidence, both on direct and cross-

examination, that Lucero received a significant reward in exchange

29
for his testimony against McCarty. We are also persuaded that the

district court’s strong cautionary instructions with respect to

testimony given in exchange for a reduction in sentence or by a

witness that had prior felony convictions mitigates against the

finding of error here.

Both Lucero’s criminal history and the effect of his deal with

the government were adequately explored at trial. There is no

reasonable possibility, let alone a reasonable probability, that

further exploration, even if it resulted in the disclosure of the

evidence identified by McCarty, would have affected the outcome of

McCarty’s trial. The jury heard that Lucero benefitted between one

and thirty years. Further argument about the precise range on

appeal does not place the case in a different light, so as to

undermine confidence in the jury’s verdict. The district court’s

denial of relief as to McCarty’s Fifth Amendment Brady and Napue

claims is therefore affirmed.

XI.

McCarty also alleges that the district court and the

government violated his Sixth Amendment right to effectively cross-

examine Lucero by misrepresenting to the jury the benefits Lucero

received as a result of his testimony against McCarty. McCarty’s

claim is based upon: (1) the statement by the district court to the

jury that Lucero’s sentencing guideline range would have been the

same without regard to whether count 2 was dismissed, and (2) the

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government’s closing argument that Lucero’s reward for cooperating

with the government was limited to a one year reduction in his

sentencing guideline range.

The Sixth Amendment guarantees the right of an accused “to be

confronted with the witnesses against him.” U.S. Const. amend. VI.

The primary interest secured by the Confrontation Clause of the

Sixth Amendment is the defendant’s right to cross-examine his

accusers. Davis v. Alaska, 94 S. Ct. 1105, 1110 (1974). “Cross-

examination is the principal means by which the believability of a

witness and the truth of his testimony are tested.” Id. “[T]he

exposure of a witness’ motivation in testifying is a proper and

important function of the constitutionally protected right of

cross-examination.” Id. When examining a claim under Davis that

cross-examination was unconstitutionally impaired, we must

determine whether the cross-examination was adequate to develop the

issue of bias properly for the jury. Id. at 1111. "[T]he

Confrontation clause guarantees the defendant "an opportunity for

effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense

might wish." United States v. Pace, 10 F.3d 1106 (5th Cir. 1993)

(internal quotations omitted). "Normally the right to confront

one's accusers is satisfied if defense counsel receives wide

latitude at trial to question witnesses." Id. Once the rigors of

the Sixth Amendment are satisfied, any limitation on the scope of

cross-examination is a matter for the sound discretion of the

district court. United States v. Restivo, 8 F.3d 274, 278 (5th

31
Cir. 1993).

XII.

There are several factors which make it doubtful that the

district court’s statement that count 2 had no effect on Lucero’s

guideline range can furnish the predicate for McCarty’s Sixth

Amendment claim that the district court impaired his right to

cross-examine Lucero. The record supports the proposition that

count 2 was not part of Lucero’s reward for testifying. Even if

the dismissal of count 2 did form part of Lucero’s reward, the

district court’s statement was not made until McCarty concluded his

unhampered cross-examination of Lucero. Finally, it was McCarty’s

counsel who invited the error by requesting that the district court

apply the 1992 guidelines before the court to Lucero’s indictment.

When the district court expressed doubt about the need for or

accuracy of any such application, McCarty’s counsel insisted that

the district court proceed. When the district court offered the

supposition that Lucero’s two offenses would merge for sentencing

purposes, neither counsel objected. To the contrary, McCarty’s

counsel conceded that he had overlooked the fact that the two

charges involved the same conduct and the same weapon. The

district court essentially secured the mutual consent of counsel

before taking judicial notice. Thus, the district court’s action

was taken pursuant to the parties’ mutual consent, if not the

parties’ stipulation on the record, that the district court’s

application of the guidelines was correct.

We are likewise in doubt as to whether statements made in the

32
government’s closing argument can furnish a basis for relief with

respect to McCarty’s Sixth Amendment claim. It is abundantly clear

from the record that neither the government, nor defense counsel,

nor the district court were able to accurately determine Lucero’s

potential exposure. The exact calculation of Lucero’s sentence

depended upon factors that were not taken into account when Lucero

was sentenced. Proof of how those factors might have played out

was a proper subject for argument at McCarty’s trial. The

government’s closing argument, which also occurred long after

McCarty concluded his unhampered cross-examination, constituted

fair argument on the evidence presented. We note that McCarty’s

counsel quite effectively made the competing argument that Lucero’s

own understanding that he could face twenty to thirty years absent

the government’s deal was most probative of his motivation for

testifying.

We are convinced that McCarty enjoyed a full and satisfactory

opportunity to cross-examine Lucero about the effect of his deal

with the government and any benefit that Lucero would receive as a

result of his testimony. This is not a case in which the jury was

not told that the testifying witness would benefit from his

testimony. The only question is whether contradictory information

before the jury about the extent of the benefit to be derived

denied McCarty his constitutional right to cross-examine Lucero.

We conclude that it did not. Whatever vagaries existed at

McCarty’s trial with regard to the application of the sentencing

guidelines to Lucero’s two counts were good faith arguments

33
advanced by the district court, the government and defense counsel.

Those arguments were all presented to the jury for decision.

We note further that Davis error is subject to harmless error

analysis in this Circuit. See, e.g., Landerman, 109 F.3d at 1064.

Assuming dubitante that McCarty has stated a claim, we would in any

event find the error to be harmless in these circumstances. Our

Davis harmless error analysis includes consideration of the

following factors: (1) the importance of the witness’s testimony;

(2) the presence or absence of corroborating or contradicting

testimony on material points; (3) the extent of cross-examination

otherwise permitted; and (4) the overall strength of the

prosecution’s case. Id. at 1064 (quoting Delaware v. Van Arsdall,

106 S. Ct. 1431 (1986)). As should be obvious from the preceding

discussion, each of these factors cut against a decision granting

McCarty relief. The district court’s decision denying McCarty

relief as to his Sixth Amendment Confrontation clause claim is

affirmed.

For the foregoing reasons, the district court’s denial of

McCarty’s § 2255 motion for relief from his conviction and sentence

is in all respects AFFIRMED.

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