IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-41103
__________________________
NOE BELTRAN,
Petitioner-Appellee/Cross-Appellant,
versus
JANIE COCKRELL, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellant/Cross-Appellee.
___________________________________________________
Appeals from the United States District Court
For the Southern District of Texas
___________________________________________________
June 27, 2002
Before HIGGINBOTHAM and CLEMENT, Circuit Judges.*
CLEMENT, Circuit Judge:
Petitioner-appellee Noe Beltran challenges the district
court’s denial of his ineffective assistance of counsel claim.
Respondent-appellant challenges the district court’s grant of
petitioner’s habeas petition on the grounds that the prosecution
knowingly failed to correct false testimony. We grant habeas
*
Judge Politz was a member of the panel that heard oral arguments. However, due
to his death on May 25, 2002, he did not participate in this decision. This case
is being decided by a quorum pursuant to 28 U.S.C. § 46(d) (1996).
1
relief, but rest the affirmation on Beltran’s ineffective
assistance of counsel claim. The prosecution skirted a line from
which it should steer clear in the future. However, because we
grant the petition on ineffective assistance of counsel grounds, we
do not have to affirm the false testimony claim. The latter is
potentially complicated here by a dispute over whether or not the
prosecution believed that the concerned testimony was false and the
defense counsel’s repeated objections to the prosecution’s attempts
to admit the photo spread central to the claims and to mention
Beltran’s co-defendant.
I. FACTS AND PROCEEDINGS
A. Facts
On the afternoon of March 4, 1981, a murder and robbery
occurred at the Disco de Oro Tortilla Factory in Brownsville, TX.
Owners and operators Enrique and Carmen Arechiga, their seventeen-
year-old son Valentin, and employees Guadalupe Benavides and Maria
Ybarra were in the tortillaria at the time of the incident. Upon
entering, the robber pointed a derringer pistol owned by Beltran’s
co-defendant Ruben Plata at Valentin, who was standing near the
cash register. Valentin immediately gave the intruder an
unspecified amount of money. Carmen approached the register.
While she was handing over more money, the robber fired the
derringer, killing her. Fleeing the scene, the robber jumped into
the passenger side of a red sports car, also owned by Plata, that
2
had pulled into the adjacent alley right before the robbery.
Neighbor Guadalupe Rodriguez testified that after hearing a
noise from the tortillaria she looked out of her window and saw the
intruder leave the tortillaria and run towards the sports car.
After the murder, Valentin and Benavides ran into the alley and saw
the red sports car. Valentin had also seen the sports car pull
into the alley right before the intruder entered the tortillaria.
Valentin drove around with the police right after the robbery-
murder; they found the car outside of Plata’s apartment. Police
officers determined that Plata owned the car.
On the day of the incident, the police made a composite
drawing of the assailant with a tattoo of the initials “LX” or “LT”
on his upper left arm and forearm. The police also compiled a
photo spread including a picture of Plata, which they showed to
Valentin, Benavides, and Ybarra that same day. This photo spread,
State’s Exhibit 10, was never admitted at trial. Valentin chose
Plata in the photo spread but qualified his choice by stating that
he could not make a definite identification without seeing a better
picture of Plata. When he was later shown a spread without a photo
of Plata, Valentin requested to see Plata’s photo again, stating
that it was the only one that resembled the robber. Benavides
thought Plata looked like the robber but was not certain; he stated
that the robber had longer hair than Plata did in the photo and
that he would like to see a more recent photo of Plata. Ybarra’s
3
response to the photo spread was similar to that of Benavides.
Then-District Attorney Reynaldo Cantu prepared an affidavit
requesting a warrant to arrest Plata and his brother Luis Plata and
to search the car. Evidence supporting probable cause was that
four hours before the murder Plata committed an aggravated assault
with a derringer at a motel, the murder weapon was a derringer,
three witnesses tentatively identified Plata as the murderer,
Plata’s car left the scene of the crime, and the Plata brothers
were seen together in the car fifteen minutes after the murder.
Officer Victor Rodriguez swore to the affidavit on March 4, 1981.
Several days later a photo spread was compiled with Beltran’s
photo. Enrique, Valentin, Benavides, and Guadalupe Rodriguez all
identified Beltran in the photo spread. Beltran was arrested on
March 14, 1981. Enrique, Valentin, and Benavides identified
Beltran in lineups on the day of his arrest. Enrique, Valentin,
and Benavides also made in-court identifications of Beltran as the
robber. They all testified to previously identifying appellant in
a photo spread and picking him out of a lineup conducted on March
14, 1981. Valentin testified outside of the presence of the jury
that the assailant was not in the March 4 photo spread. Before the
jury Valentin testified that Beltran was the assailant and that he
had previously identified Beltran in the only photo spread that he
saw and in a lineup. Enrique admitted that he could not make a
positive identification when he initially viewed Beltran in the
4
lineup. Guadalupe Rodriguez tentatively identified Beltran in
court explaining that she had only seen the assailant from the
side.
At trial, Officer Rodriguez testified for the prosecution that
the photo spread with Plata’s picture, State’s Exhibit 10, was
compiled on the day of the robbery-murder to try to identify the
assailant. When asked: “Were you able to get an identification on
the person in that robbery?”, Rodriguez replied, “No, sir.” The
government then asked: “Did you know the name of the suspect placed
in that spread for them to identify?” Lead defense counsel
objected to this question on relevancy grounds even though he knew
that witnesses had tentatively identified Plata in that spread.
The prosecution then tried to introduce into evidence State’s
Exhibit 10, but lead defense counsel again objected on relevancy
grounds. The prosecution’s reply to the objection was: “a
defensive issue is always, ‘Could it have been the other guy?’ The
state will show . . . the investigative procedure that the police
used to identify the person that committed the murder and to
exclude people that could not be identified as having committed the
murder.” Defense counsel’s response was: “Your Honor, we could be
here forever excluding people that didn’t do it.”
Admitting the tentative identifications of Plata was further
discussed outside of the presence of the jury. Defense counsel
vehemently objected several times to the relevancy of questioning
5
Officer Rodriguez about the tentative identifications. The
prosecution stated that the discussion was necessary to determine
whether Plata or Beltran killed the woman. Defense counsel
asserted that the court should “not care what kind of
characteristics are shown by photographs of Ruben Plata.”
The state’s theory at trial was that Beltran committed the
murder and Plata drove the getaway car. The state’s case depended
solely on eyewitness identifications; there was no physical
evidence to connect Beltran to the crime.
B. Proceedings
Beltran was arrested on March 14, 1981, and charged with
capital murder. A Texas district court jury found Beltran guilty
of capital murder on August 19, 1981, and the court sentenced
Beltran to death. The Texas Court of Criminal Appeals affirmed
Beltran’s conviction but reformed his sentence to life
imprisonment. Beltran’s state writ of habeas corpus was denied on
October 5, 1994.
On March 7, 1995, Beltran filed a federal habeas petition
under 28 U.S.C. § 2254. An evidentiary hearing was held and final
judgment granting habeas relief was entered on January 4, 1999.
The court then granted a 59(e) motion by the director. After a
second evidentiary hearing in front of a magistrate judge, the
district court adopted the report and recommendations of the
magistrate and entered an order on September 15, 2000, granting
6
relief on the grounds that the state failed to correct false
testimony and denying relief on the ineffective assistance of
counsel claim. The director filed a timely notice of appeal, and
Beltran cross-appealed to pursue his ineffective assistance claim.
Beltran’s April 2001 motion to issue a certificate of probable
cause is rendered moot by our decision to grant habeas relief on
his ineffective assistance of counsel claim.
II. ANALYSIS
A. Standard of Review
Since Beltran filed his habeas petition prior to the effective
date of the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
it does not fall under AEDPA standards. See Green v. Johnson, 160
F.3d 1029, 1035 (5th Cir. 1998). We review the federal district
court’s findings of fact for clear error. See Fairman v. Anderson,
188 F.3d 635, 640 (5th Cir. 1999). The district court’s
conclusions of law and of mixed law and fact are reviewed de novo.
See id.; Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). As
mixed questions of law and fact, Beltran’s claims of uncorrected
false testimony and ineffective assistance of counsel are reviewed
de novo. See Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998);
Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999).
B. Ineffective Assistance of Counsel
Strickland v. Washington, 466 U.S. 668 (1984), set the
standard for a finding of ineffective assistance of counsel. A
7
habeas petitioner must “demonstrate both that counsel’s performance
was deficient and that the deficiency prejudiced the defense.”
Crane, 178 F.3d at 312 (citing Strickland, 466 U.S. at 687).
The district court adopted the magistrate’s report and
recommendations denying Beltran’s ineffective assistance of counsel
claim because of the “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.”
Crane, 178 F.3d at 312. The district court ruled that counsel made
a reasonable strategic decision not to impeach Valentin and
Benavides and to refrain from objecting to the misleading
testimony. We disagree with the conclusion that counsel’s relevant
strategic choices could have been reasonably made “after thorough
investigation of law and facts relevant to plausible options.”
Strickland, 466 U.S. at 690.
The defense strategy was to show that Beltran did not have the
“LX” or “LT” tattoo shown in the composite sketch made on the day
of the incident. All defense counsel did to further this strategy
was testify to Beltran’s lack of such a tattoo,1 despite other
easily discoverable relevant evidence with significant exculpatory
value. Specifically, defense counsel failed to introduce evidence
1
“Appellant’s attorney testified that he had been appointed by the court to
represent the appellant. He identified two photographs taken of appellant’s left
arm showing the absence of the tattooed initials ‘LX’ or ‘LT,’ which were
supposed to have been on the assailant’s upper left forearm according to a
composite received into evidence. Defense counsel was the only witness called
by the defense before both sides closed.” Beltran v. State, 728 S.W.2d 382, 385
(Tex. Crim. App. 1987).
8
that witnesses had tentatively identified Plata and that Plata had
such a tattoo. At trial, defense counsel knew that Valentin,
Benavides, and Ybarra had tentatively identified Plata. However,
defense counsel was not aware that Plata had the tattoo central to
the defense strategy nor that Ruben and Luis Plata had been seen
together in the getaway car fifteen minutes after the murder.
Defense counsel never investigated whether Plata had any
tattoos. A presentence investigation report prepared in 1978 on
Plata in an unrelated robbery case in Brownsville described him as
having eight different tattoos, including a Nazi cross on his upper
left arm that witnesses could easily have mistaken for an “LX” or
“LT.” A responsible investigation of Plata would have uncovered
the tattoo as well as the fact that he and his brother had been
spotted in the getaway car shortly after the shooting. Defense
counsel’s assertion that the court should “not care what kind of
characteristics are shown by photographs of Ruben Plata” was
obviously wrong. In fact, lead defense counsel admitted that he
would have impeached the witnesses if he had known that Plata had
the tattoo.
Even without knowledge of Plata’s tattoo, it was unreasonable
for defense counsel not to use the tentative identifications to
impeach the witnesses and to object repeatedly to introduction of
9
the photo spread.2 In the second federal evidentiary hearing on
the habeas petition, lead defense counsel testified that he
deliberately tried to keep the jury from hearing anything about
Plata because he did not want Beltran associated with Plata, whom
he thought resembled a serial killer.3 However, the tentative
identifications had significant exculpatory value. Co-counsel for
the defense acknowledged that he would have impeached the witnesses
if he had conducted the cross-examination. This is not a matter of
this court merely disagreeing with counsel’s trial strategy. See
Crane, 178 F.3d at 312.
To satisfy the second prong of the Strickland test, petitioner
must show prejudice. Id. There was prejudice here; the fact that
Beltran’s co-defendant had such a tattoo and had been tentatively
identified by witnesses would have raised sufficient doubt in the
jury. Defense counsel’s unreasonable strategic decisions and
investigative failures amounted to ineffective assistance of
counsel.
C. False Testimony
“The Due Process Clause of the Fourteenth Amendment forbids
the State from knowingly using perjured testimony.” Knox v.
2
The court conducted a hearing outside of the presence of the jury to determine
the admissibility of the pretrial identifications of Beltran. When the
government asked Detective William Kingsbury about the March 4 photo spread,
defense counsel objected on relevancy grounds.
3
Plata shaved his head during the time of Beltran’s trial, making the "6-6-6"
tattoo on his forehead prominent.
10
Johnson, 224 F.3d 470, 477 (5th Cir. 2000) (citing Giglio v. United
States, 405 U.S. 150, 153 (1972)). To grant habeas on false
testimony grounds, petitioner must show that “(1) the evidence was
false, (2) the evidence was material, and (3) the prosecution knew
that the evidence was false.” Nobles, 127 F.3d at 415. Petitioner
has shown (1) and (2). It is not clear that Beltran has satisfied
prong three; regardless, defendant most likely waived any error.
The alleged false testimony includes witness testimony that
Beltran was the only person identified as the assailant. This
testimony was bolstered by the prosecution’s summation, which
included statements that witnesses consistently identified only
Beltran. The prosecution never clarified the witnesses testimony
by bringing out the tentative identifications of Plata, perhaps
because the defense objected to the most likely avenues of such
clarification. Namely, the defense repeatedly objected to mention
of the suspect in the first photo spread, questioning Officer
Rodriguez concerning the tentative identifications, and admission
of the photo spread.
The government argues that it did not know the testimony was
false because a tentative identification is different from an
identification,4 and Plata was only tentatively identified in the
first photo spread. The government relies on United States v.
4
At the writ hearing, Officer Rodriquez testified that a tentative identification
is not an identification.
11
Bean, which held that the admission of a photo identification of a
defendant based upon a tentative identification and without an
accompanying in-court identification was erroneously prejudicial
and should not be discussed in front of the jury. 443 F.2d 17, 18
(5th Cir. 1971). Bean did not hold that a tentative identification
is tantamount to no identification or that a tentative
identification cannot be used to impeach a witness who makes an
identification at trial. “It is a basic rule of evidence that
witnesses need not assert that they are certain of their
identification beyond a reasonable doubt.” United States v.
Roberts, 481 F.2d 892, 893 (5th Cir. 1973).
The government should not have relied on Bean as a
rationalization for the misleading testimony. However, the
government was consistent in distinguishing tentative
identifications from identifications across Beltran and Plata’s
separate trials5 and may have sincerely believed there was a
difference that saved the testimony from being false. Because, if
we were to rule on the false testimony claim, we would base our
5
The government was consistent in the position that a tentative identification is
not an identification in both the Plata and Beltran trials, even though it did
not help them to take that position in the Plata trial. At the pretrial in
Plata’s case, Officer Rodriguez stated that Valentin and Benavides did not
identify Plata in the photo spread: “He was merely picked out as a subject
representing somebody that looked like the actor. The photo was an old photo and
was not a very true photo. They could not make an identification from there.”
At Plata’s trial, Officer Kingsbury testified that he received neither a positive
nor a tentative identification of Plata from some of the witnesses. Valentin
also testified at Plata’s trial that he did not identify Plata. Officer Lupe
Limas testified at Plata’s trial that Plata was never identified as being at the
scene.
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decision on Beltran’s waiver of the errors, we do not have to
explore the government’s credibility on this point. Besides, even
if the government’s theory was acceptable, it would not apply to
Valentin’s answer that he identified Beltran in the only photo
spread that he saw.
“[T]here is no violation of due process resulting from
prosecutorial non-disclosure of false testimony if defense counsel
is aware of it and fails to object.” DeMarco v. United States, 928
F.2d 1074, 1076 (11th Cir. 1991). “In Decker, we held that the
Government can discharge its responsibility under Napue and Giglio
to correct false evidence by providing defense counsel with the
correct information at a time when recall of the prevaricating
witnesses and further exploration of their testimony is still
possible.” United States v. Barham, 595 F.2d 231, 243 n. 17 (5th
Cir. 1979) (citing United States v. Decker, 543 F.2d 1102, 1105
(5th Cir. 1976) (“we hold that the Government fulfilled its duty of
disclosure by supplying appellants with its recollection of the
true circumstances of the negotiations with the witnesses at a time
when recall and further exploration of these matters was still
possible.”)) (referring to Napue v. Illinois, 360 U.S. 264 (1959);
Giglio, 405 U.S. 150). An oft-cited Seventh Circuit case states:
“the fact that the alleged statement was known to petitioner
and his counsel during the trial compelled petitioner to
raise this issue then or not at all. When a criminal
defendant, during his trial, has reason to believe that
perjured testimony was employed by the prosecution, he must
impeach the testimony at the trial, and ‘cannot have it both
13
ways. He cannot withhold the evidence, gambling on an
acquittal without it, and then later, after the gamble fails,
present such withheld evidence in a subsequent proceeding.’”
Evans v. United States, 408 F.2d 369, 370 (7th Cir. 1969)
(quoting Green v. United States, 256 F.2d 483, 484 (1st Cir.
1958)).
Defense counsel knew about the tentative identifications at
trial. Thus, Beltran waived his right to object to the false
testimony by failing to use the tentative identifications to
impeach the witnesses and by repeatedly objecting not only to
admission of the photo spread but also to mention of Ruben Plata.
These failures were part of a deliberate defense strategy. Defense
counsel was aware that the testimony was misleading but consciously
decided not to clarify for the jury. See Ross v. Heyne, 638 F.2d
979, 986 (7th Cir. 1980).
Beltran argues that the state’s use of the error during
summation nullifies waiver. In summation, the government stated
that witnesses consistently identified Beltran in photo spreads and
lineups and that the defense could not show any “variations” in the
identifications. “[T]he Government not only permitted false
testimony of one of its witnesses to go to the jury, but argued it
as a relevant matter for the jury to consider.” United States v.
Sanfilippo, 564 F.2d 176, 179 (5th Cir. 1977).
In Sanfilippo, in which the government also used false
testimony in summation, the defense tried numerous times during the
trial to elicit evidence that the testimony was false but failed.
564 F.2d at 177. Only the government knew that the testimony was
14
false when it allowed it to stand uncorrected and relied on it in
summation. The Sanfilippo court did not deal with the situation
presented here, where the prosecution used the false testimony
consciously allowed by the defense as part of a legal strategy.
Barham is another Fifth Circuit case in which the prosecution
compounded the deception, in that instance with misleading
questions by the prosecution. Like Sanfilippo, Barham is
distinguishable; defense counsel was ignorant at trial that the
relevant testimony was false. 595 F.2d at 243 n. 17. The Barham
court noted that “[w]ere this truly a case involving simply the
failure of both sides to correct material false evidence the
defense because it had not thoroughly familiarized itself with
discovery documents in its possession, and the prosecution because
it erroneously, but nonetheless reasonably assumed defense counsel
knew the evidence was false and was consciously choosing to let it
go unimpeached we would hesitate to reverse.” Id.
Beltran’s defense counsel not only knew that the relevant
testimony was misleading but deliberately chose not to impeach that
testimony and even went so far as to object to lines of questioning
and attempted admissions by the government that could have led to
disclosure of the tentative identifications of Plata. Defense
counsel’s consistent attempts to keep any mention of Plata from the
jury indicates waiver of the false testimony claim. However, since
we grant habeas relief on the ineffective assistance of counsel
15
claim, we do not have to resolve whether Beltran waived objection
to the government’s use of misleading testimony in summation.
III. CONCLUSION
For the foregoing reasons, the district court’s denial of
habeas on ineffective assistance of counsel grounds is REVERSED and
the grant of habeas on the grounds that the prosecution failed to
correct false testimony is REVERSED.
16
Beltran v. Cockrell
Court: Court of Appeals for the Fifth Circuit
Date filed: 2002-06-27
Citations: 294 F.3d 730
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