Mastracchio v. Vose

United States Court of Appeals
For the First Circuit

No. 00-2558

GERALD S. MASTRACCHIO,
Petitioner, Appellant,

v.

GEORGE VOSE, DIRECTOR, DEP'T OF CORRECTIONS,
STATE OF RHODE ISLAND,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Circuit Judge,

Gibson,* Senior Circuit Judge,

and Lipez, Circuit Judge.

Paula Lynch Hardiman, Assistant Public Defender, for
petitioner.
Annie Goldberg, Assistant Attorney General, with whom
Sheldon Whitehouse, Attorney General, was on brief, for
respondent.

December 27, 2001
______________
*Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 SELYA, Circuit Judge. Asserting that the prosecution

failed to divulge the full extent of special favors showered

upon its star witness, petitioner-appellant Gerald S.

Mastracchio, a state prisoner, unsuccessfully sought a writ of

habeas corpus in the United States District Court for the

District of Rhode Island. The petitioner now appeals that

court's order of dismissal. Although the state court did err in

three respects and the petitioner's arguments are ably

presented, we nonetheless find that these errors are not of a

magnitude that would warrant federal habeas relief. We

therefore affirm the order of dismissal.

I. BACKGROUND

Our factual account derives primarily from the copious

records of prior court proceedings. Readers who hunger for

additional facts should consult the trio of earlier opinions

authored by the Rhode Island Supreme Court. See State v.

Mastracchio, 546 A.2d 165 (R.I. 1988) (rejecting most grounds of

petitioner's direct appeal but remanding for determination anent

Family Court's waiver of jurisdiction), aff'd after remand, 605

A.2d 489 (R.I. 1992); Mastracchio v. Moran, 698 A.2d 706 (R.I.

1997) (rejecting petitioner's application for post-conviction

relief).

-3-
 On December 15, 1979, the lifeless body of thirteen-

year-old Richard Valente washed ashore on a beach bordering

Narragansett Bay. An autopsy revealed that Valente had been

badly beaten, but that drowning caused his death. The autopsy

further revealed that a plastic plate had been inserted into his

head some time prior to his demise.

A few weeks earlier the police had caught Valente

engaging in petty larceny, and he had laid blame on the

petitioner (then age seventeen). Armed with this knowledge and

with a witness who had seen the petitioner in Valente's company

several days before the body surfaced, the police launched an

investigation. When the investigating officers were unable to

tie the petitioner to the slaying, the investigation stalled.

While these events were transpiring, Peter Gilbert, a

career criminal, was incarcerated in Florida. He escaped in

1983 and eventually telephoned the petitioner's father, Gelardo

Mastracchio (Gelardo). Gelardo, a notorious organized crime

figure, invited Gilbert to return home and partake of various

illicit enterprises. Gilbert accepted this invitation and

surreptitiously repaired to Rhode Island. He remained in

Gelardo's employ until the authorities arrested him in February

of 1985. Sensing that Gelardo had a hand in his capture,

Gilbert agreed to assist the authorities.

-4-
 Gilbert's cooperation proved fruitful, shedding light

on numerous unsolved crimes. Of particular interest here, he

told the state police that the petitioner had bragged about

killing a friend by beating him, transporting him to the

Jamestown Bridge, and throwing him over while still alive.

Although Gilbert did not know the victim's identity, he quoted

the petitioner as saying (i) that he had committed the murder to

prevent his victim from talking to the authorities, and (ii)

that his victim had never been the same since he had a plastic

plate inserted into his skull following an automobile accident.

This testimony filled the gaps in the dormant investigation, and

a state grand jury soon indicted the petitioner for Valente's

murder.

Gilbert remained in the protective custody of the

Providence police department from and after the time that he

began to warble. During his debriefing, he implicated James

Broccoli and Lawrence Mastrofine in the robbery of a liquor

store. Shortly before their trial, he testified in a voir dire

hearing regarding the promises, rewards, and inducements given

to him in exchange for his cooperation. The testimony revealed

a variety of benefits received by Gilbert including payment of

personal expenses averaging $1,500-$1,800 per month, a thirty-

day stay with his family during the holidays, conjugal visits at

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a local motel, twenty-five to fifty excursions to restaurants,

easy access to alcohol throughout the course of his custody, and

unlimited telephone privileges.

Gilbert was vigorously cross-questioned by defense

counsel about these matters and about the conditions of his

confinement. He was less than forthcoming. A representative

sampling of the cross-examination follows:

Q. You pay for that food?

A. Yes. Someone goes shopping and gets
groceries.

Q. You give them the money?

A. I don't give them the money, the Attorney
General's Office gives them the money.

Q. You sure that comes out of the fifteen
or eighteen hundred?

A. I don't see the money. When I need
groceries the money is made available to buy
groceries.

. . . .

Q. Have you been provided with any types of
rules and regulations, either verbally or in
writing, concerning your conditions of
confinement while in the custody of the
Providence Police, things you can do and
things you cannot do?

A. What I can do is pretty much limited.
I'm locked up. I got cell bars in the
window. I — two doors — three doors that
are locked. I'm confined to a three-room
area. That's my exercise. I don't have no
exercise yards.

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. . . .

Q. All you do is just live from day to day
and week to week and month to month and you
get your food and clothing, you get your
haircuts and glasses, and then someone tells
you that is costing them between fifteen
hundred and eighteen hundred dollars a
month; is that fair to say?

A. Sure.

. . . .

Q. Besides the thirty dollars a week that
you're given by welfare do you receive any
other cash from either the Providence Police
or the Attorney General's Department for
spending money?

A. No.

. . . .

Q. Is that what you told the Attorney
General, you don't have an [sic] drug
problem?

A. No. I used cocaine when I was on the
street, but I have no drug problem. I took
care of it myself within my own mind and
body. I'm no longer dependent or need any
of that stuff. I haven't had it for twenty-
three months.

. . . .

Q. . . . . Did you take any trips or have
you taken any trips while you have been in
the custody of the Providence Police?

A. Yeah. . . . I went to Florida. I went
to Florida to go to court.

. . . .

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 Q. In addition, to Florida and Maine has
there been any other?

A. No. All I can remember is going to
Florida twice and Maine once.

The voir dire hearing took place on January 9, 1997.

The petitioner's trial began approximately two months later.

Gilbert's testimony was essential to the prosecution's case; he,

and he alone, placed the petitioner at the murder scene. The

petitioner's trial counsel, Dale Anderson, was fully apprised of

what had transpired at the Broccoli/Mastrofine voir dire

hearing, and the prosecutor anticipated a full-blown attack on

Gilbert's credibility. He attempted to blunt the force of this

attack by delineating, in his case in chief, the range of

benefits that Gilbert had received. To that end, the following

exchange occurred during Gilbert's direct examination.

Q. Of the fifteen to eighteen hundred
dollars you get per month, do you see any of
that cash, physically, yourself?

A. No, I don't get it. Whatever bills are
incurred are paid from that.

. . . .

Q. Would you explain the circumstances of
your custody at this time?

A. My family is kept in a [sic] undisclosed
location in protective custody. Myself, I'm
in a lockup situation, in the custody of the
Providence Police Department. I have a 24-
hour guard, seven days a week.

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 Q. And describe the facility that you're
in?

A. I live in what could be described as a
cellblock area. Bars on the window, there
are three locked doors, successive locked
doors, with a [sic] armed guard, and I have
no access to the outside world or anything
like that.

As expected, Anderson mounted a vigorous challenge to

Gilbert's credibility. In cross-examination, he relied heavily

on the Broccoli/Mastrofine voir dire transcript. Anderson asked

Gilbert about the conditions of his confinement, his checkered

past (a sorry record that included murder, armed robbery, fraud,

and burglary), and his well-documented penchant for

prevarication. Anderson also inquired about Gilbert's affinity

for narcotics, but Gilbert denied having used drugs since his

arrest two years earlier.

On March 19, 1987, the jury found the petitioner guilty

of Valente's murder. He was sentenced to life imprisonment. In

contrast, Gilbert received what amounted to a ten-year

incarcerative sentence (i.e., a nominal fifty-year sentence,

with forty years suspended) for his myriad offenses, to be

served in the protective custody of the Providence police

department.

On June 11, 1988, Gilbert was still serving his

sentence. On that date, he died from a heart attack that

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occurred while he was driving unaccompanied to a skydiving

lesson. Because of the exotic purpose of the sojourn, the

absence of any police escort, and the presence of cocaine in the

vehicle, this incident touched off a furor concerning the nature

of Gilbert's confinement. A spate of investigations revealed

that Gilbert's jailers had permitted him to take extraordinary

liberties both before and after the petitioner's trial. Many of

these special favors had not been disclosed to the petitioner,

including, inter alia, the receipt of sums of cash ($20,000 over

the course of the six months immediately preceding the

petitioner's trial), regular access to marijuana, free passage

through the corridors of the police station (including use of

the halls for roller-skating and access to the roof), use of a

municipal courtroom for exercise, travel to Florida to see his

family on two additional undisclosed occasions,1 use of the state

attorney general's office as a reference on a loan application,

and the aforementioned skydiving lessons.

Spurred by these revelations, the petitioner filed an

application for post-conviction relief in the state superior

court. See R.I. Gen. Laws § 10-19.1-1. Following a lengthy

1
During the Broccoli/Mastrofine voir dire, Gilbert testified
that he twice went to Florida to dispose of pending criminal
charges. In point of fact, he journeyed there on two other
occasions — once before the voir dire — to see his family and
buy a car.

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evidentiary hearing, the hearing justice found that the state

did not fully and accurately disclose either the conditions of

Gilbert's confinement or the nature of the payments made to him.

The hearing justice imputed knowledge of these omissions to the

prosecution because the underlying facts were reasonably well

known to the witness protection team (i.e., the officers in

charge of Peter Gilbert during his detention), who were in

fairly regular communication with the prosecutor. Concluding

that this undisclosed information was material, the hearing

justice vacated the conviction and ordered a new trial.

The petitioner's victory proved short-lived. On

appeal, the state supreme court reinstated the conviction. It

concluded that defense counsel had sufficient opportunity to

learn the true facts, Mastracchio v. Moran, 698 A.2d at 715-16;

and that, in all events, "the prosecution was innocent of any

wrongdoing and negligence in not informing . . . defense

counsel" of the peculiar nature of Gilbert's custodial

arrangements, id. at 718-19. As an alternative ground of

decision, the court concluded that Gilbert's detailed testimony

concerning Valente's murder "would not . . . have been in the

slightest way affected or impeached" by the additional evidence.

Id. at 712-13. In reaching this conclusion, the court described

the newly emergent information as merely "cumulative and

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impeaching," id. at 713-14, such that its existence did not

undermine confidence in the verdict, id. at 715.

The United States Supreme Court refused to review this

decision, see 522 U.S. 1123 (1998), and the petitioner ventured

to the federal district court in search of habeas relief. The

matter was referred to a magistrate judge, see Fed. R. Civ. P.

72(b), who recommended denial of the petition. See Mastracchio

v. Vose, C.A. No. 98-372 (D.R.I. Mar. 15, 2000) (unpublished).

The district court subsequently adopted the magistrate judge's

report and recommendation. This appeal followed.

II. THE HABEAS STANDARD

We review this appeal under the standards imposed by

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1218 (1996), and in

particular by that portion of the AEDPA codified at 28 U.S.C. §

2254(d) (1996). This statute permits federal courts to issue a

writ of habeas corpus at the behest of a state prisoner if the

underlying state adjudication:

(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States; or (2) resulted in a decision
that was based on an unreasonable
determination of the facts in light of the
evidence presented in the State court
proceeding.

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Id.

In applying these provisions, we do not write on a

pristine page. We first addressed the AEDPA standard in O'Brien

v. Dubois, 145 F.3d 16 (1st Cir. 1998). There, we determined

that this statute requires a federal habeas court first to

assess whether the state court acted contrary to a legal rule

prescribed by the Supreme Court. Id. at 24. We held that if

the state court correctly identified the controlling rule and

acted in accordance with it (or, alternatively, if no

controlling rule exists), the federal court then proceeds to

determine "whether the state court's use of (or failure to use)

existing law in deciding the petitioner's claim involved an

'unreasonable application' of Supreme Court precedent." Id.

In a later case, the Supreme Court spoke

authoritatively to the same general set of questions. See

Williams v. Taylor, 529 U.S. 362, 402 (2000). In Williams v.

Matesanz, 230 F.3d 421, 424 (1st Cir. 2000), we noted that

O'Brien and Taylor were fully consistent. We then synthesized

these precedents, explaining that section 2254(d)(1) creates two

classes of covered cases: "the first category embraces cases in

which a state court decision directly contravenes Supreme Court

precedent, and the second embraces cases in which a state court

decision, although not 'contrary to' relevant Supreme Court

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precedent, nonetheless constitutes an 'unreasonable application'

of relevant Supreme Court precedent." Id. We added that a

state court decision would be contrary to clearly established

Supreme Court precedent if that decision applies a rule that

contradicts a rule clearly articulated by the Supreme Court or

if the state court confronts a set of facts that are materially

indistinguishable from an earlier Supreme Court decision, yet

arrives at a result that differs from that precedent. Id. at

424-25 (citing Taylor, 529 U.S. at 406). Thus,

the key inquiry . . . is whether a Supreme
Court rule — by virtue of its factual
similarity (though not necessarily
identicality) or its distillation of general
federal law precepts into a channeled mode
of analysis specifically intended for
application to variant factual situations —
can fairly be said to require a particular
result in a particular case.

O'Brien, 145 F.3d at 25.

In respect to the second prong of the model established

by section 2254(d)(1), we explained that "federal habeas relief

may lie in favor of a state prisoner when a state court

correctly identifies the applicable federal rule but applies it

in an unreasonable manner to the facts of a particular case."

Matesanz, 230 F.3d at 425. We then added:

This reduces to a question of whether the
state court's derivation of a case-specific
rule from the Court's generally relevant
jurisprudence appears objectively

-14-
 reasonable. . . . [T]he mere fact that some
fair-minded judges might find a particular
outcome unreasonable does not warrant
relief. Nor does the existence of error, in
and of itself: there is, for this purpose,
an important distinction between
unreasonable applications and incorrect
applications.

Id. (citations and internal quotation marks omitted). Refined

to bare essence, a state court decision is objectively

unreasonable only if it "falls outside the universe of

plausible, credible outcomes." Id. (quoting O'Brien, 145 F.3d

at 25).

Federal habeas review of a state court's factual

findings is similarly constrained. A habeas petitioner can

overcome such findings only by demonstrating that they were

"based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding." 28

U.S.C. § 2254(d)(2). Of course, these words must be interpreted

in light of twin congressional directives that "a determination

of a factual issue made by a State court shall be presumed to be

correct," and that an applicant for a writ of habeas corpus

"shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence." 28 U.S.C. §

2254(e)(1). Under this regime, a federal habeas court

ordinarily refrains from revisiting credibility determinations

as "it would be wholly inappropriate for a federal court to

-15-
repastinate soil already thoroughly plowed and delve into the

veracity of the witnesses on habeas review." Sanna v. DiPaolo,

265 F.3d 1, 10 (1st Cir. 2001). A habeas petitioner therefore

must clear a high hurdle before a federal court will set aside

any of the state court's factual findings.

III. ANALYSIS

Within the AEDPA framework, the petitioner asserts

three general claims of error. First, he asseverates that the

state supreme court unreasonably concluded that his defense

counsel knew or should have known of the cash payments and the

conditions of confinement. Second, he maintains that the court

erred when it refused to impute knowledge of these facts to the

prosecutor. Third, he faults the court for deeming the

undisclosed evidence immaterial to the jury's assessment of

Gilbert's credibility.

A. The Lack of Full Disclosure.

We will assume without extended analysis that the

petitioner prevails on the first of these arguments – his

asseveration that the entire gamut of the special favors

afforded to Gilbert was not fully revealed to the defense prior

to trial. While Anderson had knowledge from the

Broccoli/Mastrofine voir dire of many of these benefices (e.g.,

twenty-five to fifty jaunts to fancy restaurants, the occasional

-16-
presence of alcohol in Gilbert's cell, a prolonged "off-campus"

visit by Gilbert with his family), it seems fairly clear that

the state did not provide complete information about either the

dazzling array of liberties that Gilbert enjoyed or the range of

perquisites that he received. The state supreme court

acknowledged the lack of disclosure to some extent, see

Mastracchio v. Moran, 698 A.2d at 713 (agreeing that "certain

details of Gilbert's confinement were not revealed until after

Gilbert's testimony at [the petitioner's] trial"), but

nonetheless found that the petitioner had sufficient overall

knowledge of the largesse extended to Gilbert. To justify this

conclusion, the court pointed to the disclosures made before

trial (including the contents of the Broccoli/Mastrofine voir

dire transcript and a ledger sheet reflecting monies given to

Gilbert). Id. at 715-16.

There is, however, a wealth of information pointing in

the opposite direction, much of it unearthed during the several

investigations that followed Gilbert's death. Taken in the

aggregate, we think that this evidence shows beyond hope of

contradiction that Gilbert was treated more favorably than the

defense was led to believe.

We need not belabor the point. Certainly, Gilbert's

guarded responses at the voir dire hearing hinted broadly at an

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unorthodox relationship with his jailers, but those responses,

fairly read, did not illuminate the full range of benefits that

he received from the state. To the contrary, Gilbert perjured

himself when he denied receiving large sums of cash, see infra

Part III(B), and he minimized the liberties available to him at

every turn. The ledger sheet alluded to by the state supreme

court did not bridge these gaps. It antedated Gilbert's trial by

more than a year — and Gilbert apparently pocketed the largest

sums of cash during that intervening period. In all events, the

ledger sheet was little more than a series of scribbled numbers

listed under two columns ("paid" and "unpaid"); the petitioner

(or his trial counsel, for that matter) would have had to

possess Delphic powers to divine from those hieroglyphics the

purport that the state now ascribes to them. The short of it is

that notwithstanding the high degree of deference that section

2254(d)(2) demands, the record in this case virtually compels

the conclusion that the state supreme court unreasonably

determined that the prosecution, in the course of the pretrial

proceedings, had adequately disclosed the favors conferred upon

Gilbert. The evidence to that effect is clear and convincing.

That said, the question remains whether this error was

sufficiently prejudicial to warrant habeas relief. That

question must be answered in the negative unless (i) the

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nondisclosure was imputable to the prosecution, (ii) the

withheld information was favorable to the petitioner, and (iii)

the information was material. In the pages that follow, we

examine these points.

B. The Failure to Impute Knowledge.

The petitioner's second claim of error hinges on the

premise that the state supreme court wrongly determined that the

prosecution bore no responsibility for any failure to disclose.

This claim turns on a line of cases that trace their roots to

Napue v. Illinois, 360 U.S. 264 (1959). The state supreme court

found Napue and its progeny inapplicable here because this was

not a

factual situation wherein the prosecutor
could be found to have been negligent in
failing to discover and make known, for
example, Gilbert's skydiving antics during
police-custody confinement. What we do have
instead is simply a factual situation where,
as the hearing justice found, the
prosecution was innocent of any wrongdoing
and negligence in not informing or being
able to inform defense counsel of the
several facts concerning Gilbert's custodial
confinement that came to public attention
shortly after Gilbert's unexpected death.

Mastracchio v. Moran, 698 A.2d at 718-19. The petitioner

assails this finding, arguing that it depends on too myopic a

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view of both the law and the record. Concluding, as we do, that

knowledge of information beneficial to the defendant should be

imputed to the prosecutor whenever such knowledge is possessed

by a representative of the prosecution, we detect error.

To begin, the state supreme court appears to have

misread the findings of the lower court. Even though the

hearing justice found that the Providence police officers had

not "suborned, instigated or encouraged Peter Gilbert to

withhold evidence," he also found that members of the witness

protection team were keenly aware of the more exotic features of

Gilbert's confinement.2 Mindful of the intense involvement of

2For example, the hearing justice wrote:

By the time of the Valente murder trial, both Lt.
Tamburini and Sgt. Oates knew that the conditions of
Peter Gilbert's "confinement" were far more liberal
than he disclosed during that trial and during the
earlier [liquor store] robbery trial. Both police
officers were part of the "prosecution team" because
they were in charge of Peter Gilbert's custody, had
supervised debriefing and had advised the State police
when Peter Gilbert provided potential evidence in the
Valente murder investigation.

As of the [liquor store] robbery trial they knew
that Peter Gilbert regularly left the police station
with a security escort on recreational excursions.
They also knew that he had cash on his person which he
derived from the Attorney General's reimbursement
checks. They were aware, as was the prosecutor, . .
. that Peter Gilbert had regular extended contact with
his wife and children, even though the regularity and
extent of those visits were never made clear to [the
petitioner].

-20-
the attorney general's department in Gilbert's protective

custody, we conclude, as did the hearing justice, that the

Providence police officers who comprised the witness protection

team must be treated as an integral part of the prosecution team

for the purpose of determining whether a failure to disclose

occurred. See United States v. Wilson, 237 F.3d 827, 832 (7th

Cir.), cert. denied, 122 S. Ct. 97 (2001).

As a legal matter, the Supreme Court precedent on this

issue is clear. When any member of the prosecution team has

information in his possession that is favorable to the defense,

that information is imputable to the prosecutor. See Kyles v.

Whitley, 514 U.S. 419, 437 (1995) (explaining that "the

individual prosecutor has a duty to learn of any favorable

evidence known to the others acting on the government's behalf

in the case, including the police"); see also Giglio v. United

States, 405 U.S. 150, 154 (1972) (holding that whether

nondisclosure results from negligence or design, the prosecutor

is responsible).

Giglio illustrates this point in the context of a

prosecutor's negligent use of perjured testimony. There, an

assistant to the prosecutor secretly promised a witness that he

would avoid prosecution if he testified on the state's behalf,

but did not reveal the clandestine promise to the prosecutor.

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Giglio, 405 U.S. at 152-53. At trial, the witness denied the

existence of any such promise, and the prosecuting attorney did

not correct the testimony. The Supreme Court made short shrift

of the argument that the perjured testimony should be overlooked

because the prosecuting attorney himself did not know of its

falsity (and was, at most, negligent in failing to discover the

truth). "A promise made by one attorney must be attributed, for

these purposes, to the Government." Id. at 154.

So too Kyles, in which the Court rebuffed the state's

argument that an individual prosecutor could not be held

accountable for evidence known only to investigators:

[N]o one doubts that police investigators
sometimes fail to inform a prosecutor of all
they know. But neither is there any serious
doubt that procedures and regulations can be
established to carry the prosecutor's burden
and to insure communication of all relevant
information on each case to every lawyer who
deals with it. Since, then, the prosecutor
has the means to discharge the government's
[disclosure] responsibility if he will, any
argument for excusing a prosecutor from
disclosing what he does not happen to know
about boils down to a plea to substitute the
police for the prosecutor, and even for the
courts themselves, as the final arbiters of
the government's obligation to ensure fair
trials.

514 U.S. at 438 (citations and internal punctuation omitted).

Imputing the investigator's knowledge to the prosecutor, the

Court reasoned, "will tend to preserve the criminal trial, as

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distinct from the prosecutor's private deliberations, as the

chosen forum for ascertaining the truth about criminal

accusations." Id. at 440.

For purposes of the instant case, these Supreme Court

precedents make manifest that the knowledge of other members of

the attorney general's department and of the witness protection

team must be imputed to the prosecuting attorney. Having placed

Gilbert on the stand to testify on behalf of the state, the

prosecutor had a duty to learn of all the inducements and

rewards that the state had tendered. That means that he was

chargeable with knowledge that the attorney general's department

had funneled significant amounts of cash to Gilbert in the

months immediately preceding the trial; that the department had

served as a reference for him in connection with the purchase of

a new car; and that Gilbert, while incarcerated, had enjoyed

sybaritic treatment above and beyond what had been disclosed to

the defense (e.g., two unreported trips to Florida, state-

sponsored skydiving lessons, and free passage throughout the

Providence police station). We therefore hold that the state

supreme court's refusal to impute the police officers' knowledge

to the prosecutor runs contrary to established Supreme Court

case law.

C. The Materiality of the Undisclosed Evidence.

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 Having enlarged the dimensions of the withheld

information to include what was known to members of the witness

protection team, we turn next to whether that corpus of withheld

information was material.3

It is well-established that the prosecution's failure

to disclose favorable information to the defense constitutes a

violation of the defendant's constitutional rights only if, and

to the extent that, it deprives the defendant of a fundamentally

fair trial. See United States v. Bagley, 473 U.S. 667, 678

(1985); Giglio, 405 U.S. at 154. To scale this barrier, the

defendant must show that the undisclosed information was

material to guilt or to punishment. See Brady v. Maryland, 373

U.S. 83, 87 (1963).

The level of materiality at which nondisclosure effects

a constitutional error depends upon whether the prosecution's

failure to disclose additional exculpatory or impeaching

evidence is simply that, or, alternatively, results from the

prosecution's knowing use of false testimony or evidence. We

limned this dichotomy in Gilday v. Callahan, 59 F.3d 257 (1st

Cir. 1995). There, we made clear that when the prosecution

simply fails to disclose evidence that is favorable to the

3In turning directly to this question, we accept, without
further ado, that the withheld information was adverse to
Gilbert's credibility and, thus, favorable to the petitioner.

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accused, such evidence is deemed material "only if there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different." Id. at 267 (citation omitted). For ease in

reference, we shall call this the Brady standard. See Brady,

373 U.S. at 87.

A different, more defendant-friendly standard of

materiality attaches when a prosecutor has knowingly used

perjured testimony or, equivalently, has knowingly failed to

disclose the information that would give the lie to perjurious

testimony. See United States v. Agurs, 427 U.S. 97, 103-04

(1976); Giglio, 405 U.S. at 154. When that occurs, "a

conviction is fundamentally unfair, and must be set aside, if

there is any reasonable likelihood that the false testimony

could have affected the judgment of the jury." Gilday, 59 F.3d

at 267. For ease in reference, we shall call this more lenient

standard of materiality the Agurs standard.

Here, the state supreme court used the Brady standard

across the board, requiring the petitioner to "show that there

would be a significant chance that the use and development of

the posttrial discovered evidence would have produced a

reasonable doubt in the minds of enough jurors to avoid a

conviction." Mastracchio v. Moran, 698 A.2d at 719. In this

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venue, the petitioner asseverates that the court should have

applied the more rigorous Agurs standard to the entire body of

undisclosed evidence (or, in the alternative, that it

unreasonably applied the Brady standard).

In order to determine who has the better of the

argument, we must assess the reasonableness of the state supreme

court's determination that "even though [Gilbert's] testimony

might have been somewhat misleading, it did not amount to

perjury." Id. The court made this determination based upon its

conclusion that "although Gilbert did not go out of his way to

explain all the minute details of his custodial confinement

while at the Providence police station, he did in fact answer

directly the questions as posed to him by defense counsel." Id.

In so concluding, the court relied heavily on Bronston v. United

States, 409 U.S. 352, 360 (1973), for the proposition that

literally true but unresponsive answers do not constitute

perjury.

To test the soundness of this determination, we must

examine what Gilbert was asked, how he responded, the literal

truth of his answers, and what (if any) falsehoods were known to

the prosecution but unknown to the defense. We reiterate that

we may set aside the judgment of the supreme court on this

matter only if its determination fell "outside the universe of

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plausible, credible outcomes." Matesanz, 230 F.3d at 425

(quoting O'Brien, 145 F.3d at 25).

We undertake this inquiry in considerable detail since

the prosecution's knowing use of perjury, if material, "is

incompatible with the rudimentary demands of justice." Giglio,

405 U.S. at 153. Indeed, a finding of condoned perjury demands

the application of a more lenient standard of materiality not

simply because the knowing use of false testimony involves a

prosecutorial peccadillo, "but, more importantly because [it]

involve[s] a corruption of the truth-seeking function of the

trial process." Agurs, 427 U.S. at 104.

Upon perscrutation, one of Gilbert's statements at

trial quite obviously crosses the line. The prosecutor,

referring to the disclosed fact that the state had regularly

reimbursed Gilbert for certain expenses, asked him point blank:

"Do you handle any of the cash, physically, yourself?" Gilbert

replied: "No, I don't get it." But the post-trial disclosures

revealed that Gilbert was given a total of $20,000 in cash in

the six months leading up to the trial. Clearly, then, this

answer was false, and knowledge of its falsity was imputable to

the prosecutor since members of the attorney general's

department and/or the witness protection team actually delivered

the cash to Gilbert. That leaves the question of whether this

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condoned perjury was material in the requisite sense, and, thus,

rose to the level of constitutional error. We shall return to

that question shortly.

First, however, we deal with the remainder of the

undisclosed evidence. In regard to those instances of

nondisclosure, the state supreme court determined that they were

not occasioned by the prosecutor's reliance on perjurious

testimony, known by him to be false yet undisclosed to the

defense. Inasmuch as the record supports that determination,4

the court did not act contrary to the pertinent Supreme Court

precedents when it concluded that those instances of

nondisclosure (that is, everything except the failure to

disclose the manifest falsity of Gilbert's categorical denial

that he had received cash) warranted employment of the Brady

standard rather than the Agurs standard.5

4
This is not to say that Gilbert did not lie in other
respects at the petitioner's trial. When the prosecutor queried
Gilbert about the conditions of his confinement, Gilbert stated
that he had "no contact with the outside world." This answer
was literally false, but the petitioner was aware of many of
Gilbert's peregrinations (and, thus, knew of the falsity of his
response). Then, too, although the petitioner has proffered
some evidence that Gilbert used drugs while in custody and
asserts that Gilbert perjured himself when he testified to the
contrary, he has not provided any evidence that the members of
the prosecution or witness protection teams knew of any such
drug use.
5
We think it is altogether proper to segregate out the
prosecution's knowing use of perjury from its inadvertent

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 We are also persuaded that the state supreme court did

not unreasonably apply Brady when it opined, as an alternative

holding, that the nondisclosure of this evidence "would not have

in any circumstance created a reasonable probability that the

jury's verdict would have been any different." Mastracchio v.

Moran, 698 A.2d at 715. To support this holding, the court

cited the powerful evidence buttressing Gilbert's testimony, id.

at 712-13, and noted that his story remained consistent both

before and after he received kid-glove treatment from the state,

id. at 718.

This conclusion withstands scrutiny. Although Gilbert

was the sole witness who placed the petitioner at the scene of

the crime, his testimony relating to the petitioner's confession

was fully corroborated by other evidence. For example, Gilbert

described the victim as still alive when he was thrown into the

failure to disclose other information favorable to the
defendant, and to treat those bevues separately. Perjury is to
be narrowly construed, and we must not attach the opprobrium
that inevitably accompanies it to statements that do not fall
within its purview. See Bronston, 409 U.S. at 360-62. This
bifurcated approach does not create some strange hybrid. After
all, this is not the only situation in which an appellate court
must use different measures of prejudice for different errors
within a single case. For example, on direct review in federal
criminal cases, courts of appeals typically use one benchmark —
"harmless beyond a reasonable doubt" — for errors of
constitutional magnitude and another — "substantial and
injurious effect on the verdict" — for nonconstitutional errors.
See, e.g., United States v. Bosch, 584 F.2d 1113, 1117-18, 1122-
23 (1st Cir. 1978).

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sea — and the medical examiner's evidence confirmed this fact.

Similarly, Gilbert tied the incident to the Jamestown Bridge —

a span in close physical proximity to the place where the body

washed ashore. Gilbert also recalled that the victim had a

plastic plate in his head, and the autopsy revealed that such a

plate had been surgically inserted into Valente's skull at some

time before the beating. Gilbert said that the victim had been

the petitioner's friend; Valente fit this description. Finally,

Gilbert had been in Florida from 1978 to 1983 and was unlikely

to have heard such details from anyone who was not privy to the

crime. This chain of similarities, forged by one who would

otherwise have little opportunity to acquire this knowledge,

strongly supports the conclusion that the jury probably would

have believed Gilbert even if the additional details of his

confinement were fully exposed.

Furthermore, Gilbert, even without the withheld

information, was a sullied witness. The petitioner's trial

counsel had a great deal of adverse information at his disposal,

and he fiercely attacked Gilbert's credibility at the trial — an

attack that included the sordid details of Gilbert's prior drug

use, his extensive criminal record, and his previous lies under

oath. Gilbert's credibility was significantly impeached by

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reason of this sustained assault — yet the jury nevertheless

believed his account of the petitioner's boasting.

That ends this aspect of the matter. Although we might

well have concluded differently on direct review, we are

confident that the state supreme court reached a plausible and

credible outcome on the basis of the record. Consequently, we

are not at liberty to disturb that outcome. See Taylor, 529

U.S. at 411 (holding that an erroneous, but not unreasonable,

application of Supreme Court precedent will not justify habeas

relief); Matesanz, 230 F.3d at 429 (same).

D. The Materiality of the Perjury.

We now return to the prosecution's knowing use of

Gilbert's false testimony about the cash payments. Since the

Agurs standard of materiality obtains in respect to this

perjurious statement, see supra, it follows from what we already

have said that the state supreme court departed from established

Supreme Court precedent when it applied the Brady standard in

these purlieus. The question, then, is whether there is any

reasonable likelihood that Gilbert's falsehood might have

affected the jury's ultimate judgment.6 Agurs, 427 U.S. at 103.

6
The state attempts to devalue this bit of testimony, saying
that it goes only to the credibility of the witness. That begs
the question. See Napue, 360 U.S. at 269-70 (observing that
"[t]he jury's estimate of the truthfulness and reliability of a
given witness may well be determinative of guilt or innocence").

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 On reflection, we do not believe that disclosure of the

cash payments prior to trial conceivably could have affected the

verdict. As the state supreme court observed, Gilbert told a

consistent story all along. Mastracchio v. Moran, 698 A.2d at

718. The fact that Gilbert had staked out his position well

before he received any emoluments renders remote any possibility

that the jury would have thought that he had fabricated his

story in return for cash. Then, too, the unusual nature of

Gilbert's testimony (i.e., his recital of facts that only could

have been known to the perpetrator of a crime that was committed

while he was in an out-of-state penitentiary) makes it highly

unlikely that his truthfulness could be impeached by information

that he was accepting monies from the state. Last — but surely

not least — Gilbert's credibility was a major focus of the

trial, and the jury knew that he was no choirboy. At the very

least, Gilbert was a sullied witness — and information about the

cash payments was unlikely to have tipped the balance and

changed the minds of those who credited his testimony. After

all, the defense and the jury knew that the state had regularly

reimbursed Gilbert for certain expenditures — at a rate of

$1,500 to $1,800 per month — and the delivery of an additional

$1,000 to $2,000 per month in cash derived from those

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reimbursement checks was merely a further entry in the ledger of

special favors.

Taken in the ensemble, these factors foreclose all

reasonable likelihood that the jury, had it known of the cash

payments, could have reached a different outcome. Consequently,

we hold that prosecution's failure to disclose that Gilbert had

received cash payments from the state was not material.

Accordingly, even though the state supreme court's failure to

apply the Agurs standard to the nondisclosure of cash payments

was contrary to settled Supreme Court precedent, the error was

not of constitutional dimension. We hold, therefore, that the

petitioner's trial was not fundamentally unfair.

IV. CONCLUSION

We need go no further. This case involves an appalling

chapter in the history of Rhode Island law enforcement — a

chapter made all the more sordid by the ineptitude with which

the prosecution handled its disclosure obligations vis-à-vis the

kid-glove treatment that Gilbert received. On habeas review,

however, our function is not to punish a state for prosecutorial

misconduct unless that misconduct gave rise to a constitutional

error that prejudiced the petitioner. Here, the state's highest

court concluded that, although the petitioner did not receive a

perfect trial, he received a fair one. Despite the fact that

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the state court committed three errors in its multifaceted

analysis, we conclude that its bottom-line assessment was not

unreasonable. It follows that the petitioner has not shown the

requisite constitutional injury (and, accordingly, that the

district court did not err in refusing to issue a writ of habeas

corpus).

Affirmed.

— Separate Opinion Follows —

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 LIPEZ, Circuit Judge (concurring in the judgment). I

agree with my colleagues that the judgment below should be

affirmed. I am persuaded that the state court was not

unreasonable in its conclusion that the additional undisclosed

evidence "would not have in any circumstance created a

reasonable probability that the jury's verdict would have been

any different." Mastracchio v. Moran, 698 A.2d 706, 715 (R.I.

1997). As the majority opinion notes, Gilbert was already a

"sullied witness" even without the undisclosed information, and

"yet the jury nevertheless believed his account of the

petitioner's boasting." I agree that it was not reasonably

likely that the undisclosed information could have changed the

minds of those who believed Gilbert's testimony.

I write separately, however, because I disagree with

the majority's articulation of the reasonableness standard in 28

U.S.C. § 2254(d)(1). Specifically, I take issue with its

adherence to the principle that, for a writ to issue, "the state

court decision must be so offensive to existing precedent, so

devoid of record support, or so arbitrary, as to indicate that

it is outside the universe of plausible, credible outcomes."

O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998). My concern

here, similar to that voiced by Judge Lynch in her concurrence

in Kibbe v. DuBois, 269 F.3d 26 (1st Cir. 2001), is that this

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particular aspect of O'Brien is inconsistent with the

reasonableness standard set forth in a subsequent Supreme Court

decision, Williams v. Taylor, 529 U.S. 362 (2000), and has thus

been overruled.

In Williams, the Supreme Court read § 2254(d)(1) to

mean that a habeas writ does not "issue simply because [a

federal] court concludes in its independent judgment that the

relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that

application must also be unreasonable." 529 U.S. at 411. The

Williams Court rejected the standard advanced by the Fourth

Circuit that a state court decision involves an "'unreasonable

application of . . . clearly established Federal law' only if

the state court has applied federal law 'in a manner that

reasonable jurists would all agree is unreasonable.'" Id. at

409 (quoting Green v. French, 143 F.3d 865, 870 (4th Cir.

1998)). The Court explained that "[t]he federal habeas court

should not transform the inquiry into a subjective one by

resting its determination instead on the simple fact that at

least one of the Nation's jurists has applied the relevant

federal law in the same manner the state court did in the habeas

petitioner's case." Id. at 409-10.

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 In Brown v. Maloney, 267 F.3d 36 (1st Cir. 2001), a

case that we decided subsequently to O’Brien without applying

the O'Brien standard, the panel emphasized that the

“unreasonable application” prong under § 2254(d)(1) “reduces to

the question of whether the state court’s derivation of a case-

specific rule from the Supreme Court’s jurisprudence on the

point appears to be objectively reasonable. The test is not so

stringent as to require that all reasonable jurists agree the

state court decision was unreasonable.” 267 F.3d at 40 (citing

Williams, 529 U.S. at 409-10). I am inclined to agree with this

formulation. I do not believe that, read literally, the

“outside the universe of plausible, credible outcomes” test of

O’Brien is consistent with it.

Indeed, I must confess that I struggle to understand

how the O'Brien standard actually works. For example, that

standard could mean that if one court applied or could apply the

relevant federal rule in the same manner as the state court

decision under review, that state court decision would not be

outside the universe of plausible, credible outcomes. If so,

such a standard reduces the "unreasonable application" standard

to the subjective inquiry rejected in Williams, and effectively

requires that all reasonable jurists agree that the state court

decision was unreasonable. Although I recognize the sea change

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in habeas review enacted by AEDPA, I do not understand that

change to require an "unreasonable application" standard for §

2254(d)(1) that virtually insulates state court decisions from

meaningful review.

Again, however, this exception to the majority’s

opinion does not alter my view that the majority opinion reaches

the correct result. For that reason, this concurrence is not an

occasion to elaborate further on the exception that I note.

Eventually, however, there will be a case where the formulation

of the "unreasonable application" standard does make a

difference and we will have to resolve this important issue.

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