United States Court of Appeals
For the First Circuit
No. 02-1570
RAFAEL MORENO-MORALES,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Irma R. Valldejuli, for appellant.
Marie K. McElderry, Attorney, Department of Justice, Civil
Rights Division, Appellate Section, with whom Ralph F. Boyd, Jr.,
Assistant Attorney General, and Jessica Dunsay Silver, Attorney,
were on brief, for appellee.
July 3, 2003
TORRUELLA, Circuit Judge. Rafael Moreno Morales
petitions to vacate his sentence or set aside his judgment of
conviction pursuant to 28 U.S.C. § 2255 (2003) because of newly
discovered evidence and Brady violations. The district court
adopted the magistrate judge's report and recommendation and
dismissed the petition without an evidentiary hearing. After
careful review, we affirm.
I. Facts
A. Cerro Maravilla
We recount only the basic facts of the infamous events at
Cerro Maravilla. A more detailed account can be found in the
majority and minority opinions of United States v. Moreno Morales,
815 F.2d 725 (1st Cir.), cert. denied, 484 U.S. 966 (1987).
On July 25, 1978, Arnaldo Darío Rosado
and Carlos Soto Arriví were shot and killed by
police on a mountain site in Puerto Rico known
as Cerro Maravilla. The two men, both of whom
were members of the Puerto Rico independence
movement (independentistas), had gone to Cerro
Maravilla apparently intending to blow up or
otherwise sabotage a television tower located
on the mountain. The police reported after the
event that Rosado and Soto Arriví met their
death in a shootout while resisting arrest.
Id. at 729.
The Cerro Maravilla incident became a principal issue in
Puerto Rico politics as conflicting versions of the events emerged,
culminating in a six-month live-televised hearing in front of the
Puerto Rico Senate ("Senate") in late 1983. See id. at 754-55
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(Torruella, J., concurring in part and dissenting in part). The
hearings ended dramatically when four key witnesses, including
police officers Miguel Cartagena Flores ("Cartagena") and José
Montañez Ortiz ("Montañez"), were granted immunity and testified
that Soto Arriví and Rosado had surrendered and were disarmed when
they were killed by police officers in a second volley of gunfire.
Id. at 755.
As a "direct result of the evidence adduced" in the
Senate hearings, the federal authorities reopened a criminal
investigation1 into the events at Cerro Maravilla. Id.
B. The Trial: Testimony of Cartagena and Montañez
Moreno Morales was a police officer present when Soto
Arriví and Rosado were killed. Most officers asserted that the
independentistas were killed in self-defense during a shoot-out,
but the Senate hearings yielded a story of execution and cover-up.
When questioned by local prosecutors, a federal grand jury, and
attorneys conducting depositions in a civil case, Moreno Morales
claimed that there was only one volley of shots and that he was not
present when the independentistas were killed. He and nine other
officers were charged with perjury and obstruction of justice and
tried in federal court in February and March, 1985. Key government
evidence at trial included the testimony of Cartagena and Montañez.
1
There were previous inquiries by local and national law
enforcement authorities. All absolved the police officers of
culpability in the deaths.
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Cartagena testified that when he was about to leave the area where
both independentistas were under arrest (and alive); he heard
shots, looked back, and saw Moreno Morales and Luis Reverón
Martínez each holding a weapon and observed each officer's hand
recoiling.
Officer Montañez testified that although he was not
present, Moreno Morales told him that Soto Arriví asked Moreno
Morales to "finish him up," and Moreno Morales took another
officer's weapon and shot the victim. Montañez also stated that
Antonio Méndez Rivera was with him at the time of the killings.
This contradicted Méndez Rivera's testimony in which he stated that
he saw Moreno Morales kill Soto Arriví.
The jury found Moreno Morales guilty of one count of
conspiring to obstruct justice, give false testimony and suborn
perjury, in violation of 18 U.S.C. § 371, and five substantive
counts of perjury, in violation of 18 U.S.C. §§ 1621 & 1623.2
Moreno Morales was sentenced to thirty years in prison. A divided
panel of this Court affirmed his conviction. Moreno Morales, 815
F.2d at 752.
2
Moreno Morales was later found guilty in state court of the
second degree murder of Soto Arriví, and was sentenced to twenty-
two to thirty years in prison, to be served after his federal
sentence. Puerto Rico v. Pérez Casillas, 92 J.T.S. 171 (1992).
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C. Post-Trial
In 1992, Moreno Morales sought post-judgment relief under
28 U.S.C. § 2255. The district court denied relief and we
affirmed. Moreno Morales v. United States, No. 92-1157, 1992 WL
245718, at *1 (1st Cir. Oct. 1, 1992).
Moreno Morales was denied parole in July, 1995. He filed
a petition for writ of habeas corpus, arguing that the Parole
Commission's denial was arbitrary and capricious. The district
court denied relief and, in an unpublished decision, we upheld the
ruling. Moreno Morales v. United States Parole Comm'n, No. 96-
2358, 1998 WL 124718, at *4 (1st Cir. Jan. 20, 1998) (per curiam).
We noted that at his parole hearing, Moreno Morales "admitted
shooting Soto Arriví, saying he did so when he 'lost control' after
Soto Arriví shot at him." Id. at *2.
In December, 1996, the Puerto Rico Senate held another
investigation, this time to probe allegedly wrongful conduct during
the Senate's original investigation of the incident. During the
1996 hearing, Cartagena testified that he did not in fact know who
killed the victims at Cerro Maravilla. He testified that he was
pressured into changing his testimony by prosecutors. Moreno
Morales also testified, admitting that he shot at Soto Arriví,
accepting responsibility for the victim's death, and asking for
forgiveness from the relatives of the victims.
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D. Evidence Presented for Review
Moreno Morales presents three categories of evidence to
support the instant petition. First, he cites the recent testimony
of Cartagena before the Senate, in which Cartagena admitted that he
lied during trial and claims that he in fact does not know who
killed the victims at Cerro Maravilla. Cartagena has also recently
stated that before the criminal trial he took fifteen or sixteen
polygraph tests administered by the government, in which he stated
that he did not know who killed Soto Arriví or Rosado. He claims
that government officials told him he was failing the tests and
suggested that he would be prosecuted if he did not change his
story. In response to this pressure, Cartagena stated that he
changed his story to say that he saw Moreno Morales shoot one of
the victims, and the government then told him that he had "passed"
the polygraph examination. Moreno Morales claims that the
government only disclosed three polygraph examinations of Cartagena
to the defense, and alleges that the prosecutors committed
misconduct by pressuring Cartagena.
Second, Moreno Morales has recently discovered that
Cartagena gave three sworn statements during the Senate
Investigation in late 1983 stating that he did not know who killed
the victims at Cerro Maravilla. These documents were never
disclosed to the defense.
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Finally, recent Senate notes that have been released
reveal that witnesses Cartagena and Montañez told the Senate during
the 1983 investigation that they did not know who killed the
independentistas. The notes show that United States Attorney
Daniel López Romo and Assistant United States Attorney Celestino
Matta were present during the questioning of Montañez and that
Cartagena visited López Romo after he was questioned. None of
these statements were disclosed to the defense during Moreno
Morales's trial.
E. Current Petition
In August, 1998, Moreno Morales sought leave to file a
second or successive petition under § 2255, alleging that newly-
discovered evidence of witness recantation and prosecutorial
misconduct warranted relief. Finding the circumstances
"sufficiently unusual so as to 'warrant a fuller exploration by the
district court,'" we granted the application. Order of Court, No.
98-8025, Nov. 9, 1998 (citing Rodríguez v. Superintendent, Bay
State Corr. Ctr., 139 F.3d 270, 272-73 (1st Cir. 1998)). The
district court then dismissed Moreno Morales's § 2255 petition
without an evidentiary hearing and subsequently issued a
certificate of appealability. This appeal followed.
II. Standard of Review
We review the district court's dismissal of petitioner's
§ 2255 motion de novo. Ellis v. United States, 313 F.3d 636, 641
-7-
(1st Cir. 2002). Because the district court dismissed petitioner's
claim without an evidentiary hearing, we accept as true
petitioner's sworn factual allegations "unless those allegations
are merely conclusory, contradicted by the record, or inherently
incredible." Id.
III. Discussion
Evidentiary hearings on § 2255 petitions are the
exception, not the norm, and there is a heavy burden on the
petitioner to demonstrate that an evidentiary hearing is warranted.
United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). An
evidentiary hearing "is not necessary when a [§] 2255 petition (1)
is inadequate on its face, or (2) although facially adequate, is
conclusively refuted as to the alleged facts by the files and
records of the case." United States v. DiCarlo, 575 F.2d 952, 954
(1st Cir. 1978) (quotation omitted).
A. Brady Claim
A defendant's right to due process is violated when the
prosecution suppresses evidence that is both favorable to the
accused and material either to guilt or innocence. Brady v.
Maryland, 373 U.S. 83, 87 (1963). Impeachment evidence may make
the difference between conviction and acquittal and, thus, must be
disclosed. Giglio v. United States, 405 U.S. 150, 154 (1972). The
accused does not have a duty to request favorable evidence from the
prosecution. United States v. Agurs, 427 U.S. 97, 107 (1976).
-8-
A petitioner must demonstrate that suppressed evidence is
"material," that is, that "its suppression undermines confidence in
the outcome of the trial." United States v. Bagley, 473 U.S. 667,
678 (1985); Barrett v. United States, 965 F.2d 1184, 1189 (1st Cir.
1992). "The question is not whether the defendant would more
likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence."
Kyles v. Whitley, 514 U.S. 419, 434 (1995). "Materiality" is
assessed collectively, not item by item. Id. at 436.
We assess Moreno Morales's Brady claim to discern whether
he has shown the three components of a Brady violation: "the
evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued." Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
1. Statements to the Senate
Moreno Morales asserts that notes and sworn statements
from the 1983 Senate investigation indicating that Montañez and
Cartagena did not know who killed the victims at Cerro Maravilla
should have been disclosed.
There is no evidence that federal prosecutors had access
to any of Cartagena's sworn statements or were aware of Cartagena's
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testimony when he denied having knowledge of who fired the fatal
shots at Cerro Maravilla. Moreno Morales claims that because the
Senate notes indicate that Cartagena was going to meet with a
federal prosecutor after he was questioned and because other
portions of the notes reveal a close collaboration between the
Senate investigators and federal prosecutors, we should assume that
either Cartagena discussed his Senate testimony and statements with
the federal prosecutor, or the federal prosecutor obtained
information regarding the witness's statements directly from the
Senate. From the evidence presented, we cannot make the leaps
necessary to support either conclusory assumption. Moreno Morales
has no evidence suggesting that the prosecutors did in fact meet
with Cartagena or that Cartagena revealed his testimony to them.
The government's duty to disclose extends beyond material
in the prosecution's possession. A 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." Kyles, 514
U.S. at 437. However, the Puerto Rico Senate was not acting on
behalf of the federal government; rather, it was conducting
independent investigations. While federal prosecutors may have
observed some of the questioning and may have reopened their
investigation as a result of what they learned in the hearings, the
notes of the Senate hearings were under seal and there is no
evidence that they were turned over to federal prosecutors. "[T]he
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government has no duty to produce evidence outside of its control."
United States v. Hughes, 211 F.3d 676, 688 (1st Cir. 2000). The
federal prosecutors did not have access to the Senate's papers and
notes. Principles of federalism lead us to the same conclusion our
sister circuit has reached -- "the state's knowledge and possession
of potential impeachment evidence cannot be imputed to a federal
prosecutor for purposes of establishing a Brady violation." United
States v. Beers, 189 F.3d 1297, 1304 (10th Cir. 1999) (holding that
federal prosecutors had no duty to discover and disclose evidence
obtained in an unrelated state investigation). Therefore, there
was no duty to disclose Cartagena's statements.
The testimony of Montañez is different. Assuming
petitioner's allegations are true, federal prosecutors were present
when Montañez swore before the Senate that he did not know who
killed Soto Arriví or Rosado. This contradicted his testimony at
trial, and therefore was impeaching evidence that should have been
disclosed under Brady. See Giglio, 405 U.S. at 154-55 (finding
duty on part of prosecutor's office to reveal impeaching oral
evidence). At oral argument, the government asserted that it
turned over all its notes to the defense, notes which would have
included the prosecutor's notes from the hearing at which Montañez
testified. However, the record is devoid of any such disclosure to
the defense, and we cannot assume that those notes included the
impeachment evidence. We therefore accept Moreno Morales's
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contention that he was not aware of Montañez's contradictory
testimony before the Senate.
2. Polygraph Examinations
Cartagena recently stated that he was given fifteen or
sixteen polygraph examinations by the federal government before the
1985 criminal trial. During every examination, save the final one,
Cartagena denied being present when Rosado and Soto Arriví were
killed or having any knowledge of who was responsible for their
deaths. Cartagena recently stated that prosecutors threatened that
if he did not testify "truthfully," his immunity from federal
prosecution would be withdrawn and his family might be in danger.
He states that when he changed his story and admitted being present
at the scene and inculpated two officers, he suddenly
"passed" the polygraph examination.
There were several motions regarding polygraph
examinations during the proceedings up to and including trial; the
end result was that the government was ordered to provide to the
defense results of all polygraph examinations. The government
disclosed three examinations given to Cartagena -- in two he denied
seeing the killings and in the third he inculpated Moreno Morales.
We dismiss the government's invitation to simply accept
its word that because only three polygraph examinations were
disclosed, no more than three could have been administered. Nor is
it inherently incredible that the government could have suppressed
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several polygraph examinations in this high-profile case; whether
by accidental neglect or malevolent cover-up, such Brady violations
do occur in criminal cases. Moreno Morales has presented evidence
contradicting the government's statements, and we assume his
allegations are true for purposes of this case, although there is
no evidence that the government intentionally withheld the
evidence. Accepting these allegations as true, see Ellis, 313 F.3d
at 641, the government withheld as many as thirteen polygraph
examinations that could have been used to impeach Cartagena at
trial. Assuming that it existed, that evidence should have been
disclosed to the defense.
3. Brady Analysis
Even if we assume petitioner's assertions that the
testimony of Montañez and the results of many polygraph
examinations given to Cartagena were withheld from the defense, we
find that the absence of this evidence does not undermine
confidence in the outcome of the trial and is therefore not
material under Brady. See Bagley, 473 U.S. at 678. At the time of
trial, the defense had numerous other examples of contradictory
statements made by both witnesses, including statements made under
oath. Montañez was questioned about the inconsistencies in his
testimonies, while the defense chose not to cross-examine
Cartagena. The evidence uncovered after the trial would have been
merely cumulative, and "the unavailability of cumulative evidence
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does not deprive the defendant of due process." United States v.
Sánchez, 917 F.3d 607, 618 (1st Cir. 1990); see also Zeigler v.
Callahan, 659 F.2d 254, 266 (1st Cir. 1981) (noting that cumulative
evidence is not usually material if defense had opportunity to
impeach the witness by other means).
We acknowledge the impeaching power of a witness's
evolving story. See Kyles, 514 U.S. at 444 ("[T]he evolution over
time of a given eyewitness's description can be fatal to its
reliability."). Here, however, the evolution of Cartagena's
testimony was revealed to the defense in Cartagena's conflicting
statements to grand juries. At the first grand jury proceeding in
1980 he denied seeing or hearing anything. At the second
proceeding in 1983 he admitted hearing the second volley of shots.
He later returned to reveal to the grand jury that he also saw
Moreno Morales's hand recoil immediately after the second volley of
shots were fired. This largely mirrors the evolution of his story
in the polygraph examinations that were disclosed. The defense
thus had ample evidence of a witness's story changing over time,
but chose not to utilize it.
B. Prosecutorial Misconduct
Moreno Morales claims that the prosecutors committed
misconduct in shaping Cartagena's testimony by threatening
prosecution or harm to his family.
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Section 2255 provides for post-conviction relief only
when the petitioner has demonstrated that his sentence "(1) was
imposed in violation of the Constitution, or (2) was imposed by a
court that lacked jurisdiction, or (3) exceeded the statutory
maximum, or (4) was otherwise subject to collateral attack." David
v. United States, 134 F.3d 470, 474 (1st Cir. 1998). This final
category includes "only assignments of error that reveal
fundamental defects which, if uncorrected, will result in a
complete miscarriage of justice, or irregularities that are
inconsistent with the rudimentary demands of fair procedure." Id.
(quotation omitted). Prosecutorial misconduct is only a ground for
§ 2255 relief if it violates petitioner's due process rights, see
Hill v. Brigano, 199 F.3d 833, 847 (6th Cir. 1999), that is, if the
conduct "so infected the trial with unfairness as to make the
resulting conviction a denial of due process." Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974).
It is true that due process is offended when a prosecutor
knowingly suborns perjury to obtain a conviction. Mooney v.
Holohan, 294 U.S. 103, 112 (1935). However, Moreno Morales has not
demonstrated that the government knowingly used perjured testimony
to convict him. Cartagena revealed more details each time he was
interviewed; he stated that he was not originally forthcoming
because his brother-in-law was one of the officers implicated by
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his testimony. The government could have believed that his trial
testimony was truthful and complete.
At any rate, we find that, regardless of any misconduct
in this case, Moreno Morales's due process rights were not offended
by his conviction. There was ample evidence besides Cartagena's
testimony to support Moreno Morales's conviction, including two
other witnesses who stated that Moreno Morales shot Soto Arriví.
Coupled with Moreno Morales's confession, we find that any
misconduct by the prosecutors did not deprive Moreno Morales of a
fair trial. See United States v. González-González, 258 F.3d 16,
25 (1st Cir. 2001).
C. Newly Discovered Evidence
Cartagena's statements to the Senate denying knowledge of
who killed Soto Arriví and Rosado, while not Brady evidence, do
constitute newly discovered evidence. In addition, Cartagena
recently recanted part of his trial testimony: during the 1996
Senate hearings, he stated that he did not see who shot the
independentistas. Moreno Morales seeks a new trial based on this
evidence. We note that this was the same hearing at which Moreno
Morales admitted to shooting Soto Arriví.
We need not decide whether newly discovered evidence is
a cognizable ground for obtaining a new trial in proceedings under
§ 2255. See Barrett, 965 F.2d at 1194; see also Cruz-Sánchez v.
Rivera-Cordero, 835 F.2d 947, 948 (1st Cir. 1987) (comparing
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cases). We have stated that "[a]t a minimum, petitioner would be
required to meet the conventional criteria for obtaining a new
trial on the ground of newly discovered evidence." Barrett, 965
F.2d at 1194. That would require petitioner to prove four
elements: "(1) the newly discovered evidence was unknown or
unavailable at the time of trial; (2) the defendant was duly
diligent in trying to discover it; (3) the evidence was material;
and (4) the evidence was such that it would probably result in an
acquittal upon retrial." Awon v. United States, 308 F.3d 133, 140
(1st Cir. 2002).
Regardless of whether he can show the first three
elements, Moreno Morales has failed to show that the new evidence
would result in his acquittal. The new evidence revealing
Cartagena's account of the events at Cerro Maravilla largely
matches an account given soon after the incident (an account that
was disclosed to the defense). Moreover, the new evidence Moreno
Morales seeks to introduce emerged at the same time as additional
new evidence -- the fact that Moreno Morales was responsible for
causing Soto Arriví's death. Moreno Morales was charged with lying
when he disavowed knowledge of the events at Cerro Maravilla. He
now admits not only to knowing what took place, but to killing one
of the independentistas. A new trial that considers the
recantation would also consider the confession, and in all
likelihood Moreno Morales would again be found guilty of perjury
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and obstruction of justice.3 Given Moreno Morales's confession at
the hearings, it is difficult to challenge the outcome of his
trial.
IV. Conclusion
Because Moreno Morales's § 2255 petition is "inadequate
on its face," there is no need for an evidentiary hearing.
DiCarlo, 575 F.2d at 954. We affirm the district court's dismissal
of his petition.
3
At oral argument, Moreno Morales's counsel admitted that
petitioner would likely have to plead guilty at retrial.
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Moreno-Morales v. United States
Court: Court of Appeals for the First Circuit
Date filed: 2003-07-03
Citations: 334 F.3d 140
Copy CitationsCombined Opinion