97 Civ. 3292 (JFK), S2 92 Cr. 374 (JFK)
April 22, 2003
Before the Court are Petitioner David Podlog's ("Podlog") supplementalpro se motions to vacate his conviction and sentence, or in the alternative to correct his sentence, pursuant to 28 U.S.C. § 2255 ("§ 2255"). For the reasons outlined below, Petitioner's motions are denied.
A detailed background to this case has been presented in this Court's prior orders and in a previous opinion of the Court of Appeals for the Second Circuit. See United States v. Podlog, 35 F.3d 699 (2d Cir. 1994) (affirming Podlog's conviction and sentence). The Court will therefore discuss only those facts relevant to the present motions.
Podlog was charged in an indictment, S2 92 Cr. 374 (JFK), filed on September 24, 1992. Count One of that indictment charged Podlog and his co-defendants with conspiracy to distribute heroin and possession with intent to distribute heroin in violation of 21 U.S.C. § 846. Following a jury trial before this Court, Podlog and his co-defendants were convicted on Count One on April 27, 1993.
On January 31, 1994, Podlog moved for a new trial pursuant to Federal Rule of Criminal Procedure 33, arguing, inter alia, that a cooperating Government witness, Alexander Moysif ("Moysif"), had committed perjury during Podlog's trial. Podlog claimed that Moysif did so with the knowledge and consent of the Government. On May 6, 1994, this Court denied Podlog's claims of outrageous government conduct and ineffective assistance of counsel, but ordered a hearing to determine the issue of Moysif's alleged perjury. The evidentiary hearing was held on June 13, 1994, and on July 20, 1994, this Court found by written Opinion and Order that Moysif had not committed perjury and thus denied Podlog's remaining claim for a new trial.
Podlog's Presentence Report ("PSR") concluded that he should receive a three-level enhancement under § 3B1.1 of the United States Sentencing Guidelines (U.S.S.G.) due to his role as a manager or supervisor of criminal activity involving five or more participants. After denying Podlog's request for an evidentiary hearing on the issue of his supervisory role, this Court sentenced Podlog on October 5, 1994 to a term of 324 months' imprisonment based on an adjusted offense level of 39 and a Criminal History Category of III.
Podlog appealed his conviction and sentence to the Court of Appeals for the Second Circuit. On appeal, Podlog argued that this Court erred by denying his motion for a new trial based on Moysif's alleged perjury, by: (1) finding Podlog legally responsible for distributing 14.4 kilograms of heroin, (2) raising offense level by three points, and (3) denying him an evidentiary hearing on the issue of his role in the offense. The Second Circuit rejected Podlog's claims and affirmed his conviction and sentence. See United States v. Podlog, 35 F.3d 699 (2d Cir. 1994); see also United States v. Podlog, 60 F.3d 810 (2d Cir. 1995).
On April 22, 1997, Podlog filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate or set aside his conviction and sentence. In his petition, Podlog alleged that the Government: (1) failed to provide him with a Drug Enforcement Agency ("DEA") report in violation ofBrady v. Maryland, 373 U.S. 83 (1963), (2) denied his right to due process through the suppression of a trial exhibit, and (3) knowingly relied on the perjured testimony of Government witness Moysif.
Subsequently, on November 26, 1997, Podlog filed a "Supplemental Motion Pursuant to 28 U.S.C. § 2255". Since his sentencing in 1994, Podlog has been diagnosed with heart disease and has undergone a series of procedures to stabilize his condition. The supplemental motion adds to his petition a claim that Podlog would have argued for a downward departure at sentencing due to poor health had prison authorities been more prompt and diagnosed his heart condition before the time of sentencing.
On October 27, 1998, Podlog filed a second supplemental motion to his Section 2255 petition. In this motion, Podlog again alleges various violations of his rights under Brady v. Maryland, specifically that the Government failed to disclose the existence of a cooperation agreement between the Government and Podlog's co-defendant Aron Roizis ("Roizis"). Podlog also claims that the Assistant United States Attorneys prosecuting the case suborned perjury by Moysif and lied to the Court regarding the cooperation agreement.
This Court denied each of the claims in Podlog's original Section 2255 petition finding that most of the claims were procedurally barred because they were not raised on direct appeal and that the remainder had previously been raised and rejected. This Court also dismissed Podlog's two supplemental motions ruling that they were time-barred.
Podlog appealed this Court's ruling to the Second Circuit Court of Appeals, which dismissed his appeal without prejudice, ordering him to move for a certificate of appealability to this Court. On October 3, 2000, Podlog requested a certificate of appealability on two issues: (1) whether this Court improperly dismissed his supplemental motions as time-barred, and (2) whether the Government engaged in misconduct which deprived Podlog of his constitutional rights.
This Court declined to issue a certificate of appealability, but upon an appeal by Podlog, the Second Circuit granted Podlog's certificate of appealability for the limited purpose of this Court's consideration of Podlog's supplemental motions on their merits.
A federal prisoner who fails to raise an issue on direct appeal is procedurally barred from asserting it for the first time on habeas review unless he can show "cause and actual prejudice." United States v. Frady, 456 U.S. 152, 167-68 (1982); see also United States v. Canady, 126 F.3d 352, 359-60 (2d Cir. 1997), cert. denied, 522 U.S. 1134 (1998). "Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) `cause' excusing his double procedural fault, and (2) `actual prejudice' resulting from the errors of which he complains."Frady, 456 U.S. at 167-68.
Podlog points to newly discovered evidence unavailable to him at both trial and at the time of his appeal as the cause of his procedural default. First, he alleges that the Bureau of Prisons failed to adequately address and diagnose his heart condition until after his sentencing and subsequent appeal, thus depriving him of the ability to raise this consideration at sentencing. His inability, as Podlog contends, to argue this potentially mitigating circumstance resulted in an excessively harsh sentence, thereby prejudicing him.
Second, he alleges that the Government failed to disclose to him the existence of a plea agreement with his co-defendant, Roizis, and made misrepresentations to the court and further suborned the perjury of key witnesses as to this matter. Podlog claims the agreement was not revealed until after his appeal. The prejudice, according to Podlog, exists in his inability to call Roizis as a witness at trial to impeach the testimony of key Government witness Moysif, or to expose the purported perjury.
Podlog's claims must be dismissed. Podlog has failed to demonstrate that he is eligible for a downward departure based on his medical condition. Nor has he established that the Government had a duty to disclose the existence of Roizis's plea agreement, or that the United States Attorneys suborned perjury. Podlog cannot be prejudiced by the denial of consideration of information to which he was not entitled.
I. Medical Claim
Petitioner Podlog seeks a new sentencing hearing in order to argue for a downward departure pursuant to U.S.S.G. §§ 5H1.1, 5H1.3 and 5H1.4. He claims his age, mental condition, and health problems warrant a reduction in sentence.
Sections 5H1.1 and 5Hl.3 address sentencing considerations for the elderly and infirm, and for various mental conditions respectively. Because Podlog was 47 years old at the time of sentencing and has offered no evidence as to any deficiencies in his mental conditions, these claims are dismissed.
Podlog's heart condition does not demand a downward departure. Section 5H1.4 states in relevant part:
Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g. in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.
The issue turns on whether Podlog's condition is an "extraordinary physical impairment." This Court holds that it is not. "A heart condition by itself is not necessarily a reason to depart downwardly under the Guidelines." United States v. Napoli, 179 F.3d 1, 18 (2d Cir. 1999); see also United States v. Altman, 107 F.3d 4, 1996 WL 739239, (2d Cir. 1996) (affirming district court's refusal to downwardly depart based on defendant's congenital heart condition). Other circuits throughout the country have similarly declined to raise heart conditions to the level of an "extraordinary physical impairment." See United States v. Johnson, 318 F.3d 821, 826 (8th Cir. 2003) (reversing district court's grant of downward departure because coronary heart disease only constituted a normal hardship or danger to defendant); United States v. Krilich, 257 F.3d 689, 692-94 (7th Cir. 2001) (failing to recognize defendant's heart disease as extraordinary or debilitating); United States v. LeBlanc, 24 F.3d 340, 348-49 (1st Cir. 1994) (finding defendant's two heart attacks prior to sentencing were not unusual enough to warrant downward departure).
The ability of the Bureau of Prisons to treat a disability is a predominant factor in determining the magnitude of the physical impairment, and therefore whether a downward departure is warranted. See United States v. Altman, 48 F.3d 96, 104 (2d Cir. 1995) (affirming district court's finding that defendant's health simply needed monitoring which Bureau of Prisons could adequately perform). Despite Podlog's allegations that he was initially misdiagnosed and treated improperly while in the custody of the Bureau of Prisons, he has subsequently received full medical attention and undergone procedures that have stabilized his heart condition. There is no evidence that the Bureau of Prisons cannot adequately care for Podlog's condition, therefore a downward departure is not warranted.
II. Brady Violation and Perjury
Podlog's second supplemental motion to his § 2255 petition alleges that the Government violated Brady v. Maryland by failing to disclose the existence of a plea agreement with his co-defendant, Roizis, who Podlog claims would have provided material impeachment evidence against Government witness Moysif had he been available as a witness. Podlog further argues that the Government suborned Moysif to perjure himself in regards to the existence of the plea agreement, and that the Government lied directly to this Court concerning the agreement as well as the reasons for Roizis's severance from Podlog's trial.
A. Brady Violation
Prior to Podlog's trial, Moysif was placed in the same cell as Roizis. It is Podlog's contention that Roizis acted as a mentor to Moysif, both prior to and while they were incarcerated together. Roizis, according to Podlog, instructed Moysif regarding the content of his testimony against Podlog. Podlog claims that had he known of the existence of Roizis's plea agreement with the Government, he could have called him as a witness for impeachment purposes because Roizis's Fifth Amendment privilege would no longer be available. Podlog's allegations are based on what he claims to be newly discovered evidence.
Motions for relief based upon previously undiscovered evidence are "ordinarily not favored and should be granted only with great caution."United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958), cert. denied, 357 U.S. 937 (1958). See also United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993) (relief warranted "only in the most extraordinary of circumstances" (citation and emphasis omitted)). Relief is warranted under Brady v. Maryland, 373 U.S. 83 (1963), however, where (1) "the government failed to disclose favorable evidence, and (2) . . . the evidence it `suppressed' was material." United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) (citing Brady, 373 U.S. at 87)
"Favorable evidence" includes not only exculpatory but also impeachment evidence." United States v. Bagley, 473 U.S. 667, 676 (1985); see also Giglio v. United States, 405 U.S. 150, 154 ("When `reliability of a given witness may be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." (citation omitted)). Generally, evidence is material if it "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419 (1995); see also Bagley, 473 U.S. at 678. The evidence in question was neither suppressed by the Government, nor was it material to the case.
1. Disclosure Requirements under Brady Brady and its progeny impose a duty upon the Government to disclose to the defendant evidence that is material "either to guilt or to punishment." Brady, 373 U.S. at 87. United States v. Agurs, 427 U.S. 97 (1976), extended the Brady doctrine to situations where the defendant failed to make a request for disclosure, but still required the defendant to prove that the Government suppressed material evidence. "Evidence is not `suppressed' if the defendant either knew, or should have known of the essential facts permitting him to take advantage of any exculpatory evidence." United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) (citations omitted) (emphasis added), cert. denied, 459 U.S. 1174 (1983); see also United States v. Gaggi, 811 F.2d 47, 59 (2d Cir. 1987) (same).
Podlog asserts that his trial counsel made timely requests under Brady for evidence and that the Government continually failed to advise them of the plea agreement with Roizis. Even conceding the veracity of this assertion, Podlog knew or should have known of the "essential facts" that would have led him to the possible impeachment evidence. In United States v. LeRoy, 687 F.2d 610 (2d Cir. 1982), the court held that the government had no duty to turn over grand jury testimony when the defendant knew of the witness's identity; that the witness " might have testified before the grand jury"; and that "[the witness's] statements might have supported [the defendant's] defense." Leroy, 687 F.2d at 619 (emphasis added). Podlog knew the identity of his co-defendant, Roizis, and there is substantial evidence to charge Podlog with the knowledge that Roizis might have signed a plea agreement. It was made known at trial that the Government had consented to Roizis's bail package, and at least five of Podlog's co-defendants had signed plea agreements with the Government, including Moysif, who Podlog's counsel knew had been incarcerated with Roizis prior to the trial. Furthermore, Podlog's counsel questioned a Government witness at trial with respect to whether Roizis had pled guilty. As to the utility of the plea agreement to his defense, Podlog's supplemental motion clearly states, "[His counsel] tried to establish a connection between Roizis pleading guilty and coaching Moysif's testimony against Mr. Podlog." (Supp. motion of 10/27/98, p. 5). Thus, the Government cannot be found to have suppressed Roizis's plea agreement when Podlog had sufficient grounds to believe that an agreement might have existed and that evidence of such an agreement might impact his defense.
Furthermore, Podlog's assertions that Roizis, as a co-conspirator, would have provided impeachment evidence against Moysif is purely speculative and, therefore, cannot support a finding of materiality. Disclosure is not mandatory merely because an informant is a participant in the crime charged. See United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988) Rather, the informant's testimony must also be "material to the defense" presented. Id. "The defendant need not establish what the informant would say if called. On the other hand, the defendant must, at the very least, make some evidentiary showing demonstrating why the informant's testimony is significant to determining the defendant's guilt or innocence." United States v. Prescott, 125 F.3d 845 (2d Cir. 1997);see also United States v. Jimenez, 789 F.2d 167, 170 (2d Cir. 1986) (disclosure not required where defendant produced no evidence that informant's testimony "would have been of even marginal value to the defendants case"); United States v. Gonzales, 606 F.2d 70, 75-76 (5th Cir. 1979) (where defendants' only basis for claiming relevancy of informant's testimony is mere conjecture, disclosure is inappropriate).
Foremost to this line of analysis is the fact that Roizis wasn't even an informant, but merely a co-defendant. Podlog relies on generalized and unsubstantiated speculation that Roizis's testimony might have exposed inconsistencies in Moysif's testimony. Podlog's argument rests on hypothetical events without any evidence to suggest that Roizis's testimony would have contradicted any of Moysif's testimony or that it would have likely affected the judgment of the jury. "This speculation is not sufficient to require disclosure." Prescott, 125 F.3d at 846 (holding that petitioner's unsupported theory that undisclosed informant might have testified that petitioner did not commit all elements of charged offense does not require disclosure of informant's identity.)
Podlog does not suggest that the Government relied on any information provided by Roizis to indict and prosecute him.
Based on Podlog's, at the very least, constructive knowledge of the existence of the plea agreement, and in light of the absence of evidence to support the assertion that Roizis's testimony would have affected the jury, this Court holds that the Government did not suppress evidence.
2. Materiality under Brady
A finding of materiality of the evidence is required under Brady and relief will only be granted when the evidence could in "any reasonable likelihood have affected the judgment of the jury." Napue v. Illinois, 360 U.S. 264, 271 (1959). Podlog contends that Roizis's plea agreement is material because it would have allowed him to call Roizis as a witness and that his testimony would have impeached that of Moysif. "Evidence of impeachment is material if the witness whose testimony is attacked `supplied the only evidence linking the defendant(s) to the crime,'"United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996) (quoting United States v. Petrillo, 821 F.2d 85, 90 (2d Cir. 1987), or "where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case." United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995).
New impeachment evidence, however, is not material "when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable," Payne, 63 F.3d at 1210, or where other evidence supported conviction. See United States v. Rosner, 516 F.2d 269, 273-74 (2d Cir. 1975). Podlog was given the opportunity to attack Moysif's credibility, both through cross-examining him and in opening argument and summation. Podlog's counsel made a determined effort at trial to cast doubt upon Moysif's testimony by attempting to demonstrate that certain events, such as the contemporaneous singing of Moysif's plea agreement and the acceptance of Roizis's bail package, exposed Roizis's influence over Moysif and his testimony. More importantly, the Government's case did not hinge solely on Moysif's testimony, it also relied, among other things, on the testimony of a DEA agent involved in the investigation, and DEA reports.
Podlog argues that DEA Agent Massimi testified falsely when he stated that Roizis did not plead guilty, that Moysif testified falsely as to Roizis's cooperation with the government, and that the Government relied on both instances of perjury. He further alleges that the Government made material misstatements to this Court regarding the existence of Roizis's plea agreement and as to the reasons for the severance of Roizis's case from Podlog's trial.
1. Prosecutor's Subornation of Perjury
In order to receive relief based on the prosecutor's reliance on perjured testimony Podlog must show: (1) that the testimony was actually false, (2) that the prosecution knew, or should have known, of the perjury, and (3) that there was a "reasonable likelihood that the false testimony could have affected the judgment of the jury". United States v. Agurs, 427 U.S. 97, 103 (1976). Podlog charges DEA Agent Massimi with perjury based on his testimony that Roizis did not plead guilty in the present case. Podlog's trial was held in March and April of 1993, Roizis signed his plea agreement in January 1993, but did not plead guilty until March 1994, nearly a year after Podlog's trial concluded. Podlog's insistence that Roizis had pleaded guilty in January 1993 is simply inaccurate. A signed plea agreement is not the equivalent of a guilty plea. Plea agreements do not necessarily translate into guilty pleas. Judges can reject the agreement, both the defendant and the Government can breach the agreement, or the defendant can withdraw from the agreement for fair and just reasons. United States v. Branston, 216 F.3d 1073 (2d Cir. 2000) Agent Massimi's testimony was truthful at the time it was made.
In regards to Moysif's testimony, Podlog makes a blanket claim of perjury without reference in his supplemental motion to a specific item of testimony. Podlog does include segments of the trial record where Moysif's testimony elicited questions from this Court for the sake of clarification, but they do not expose perjured statements. Questions of Moysif's candor, albeit concerning unrelated subject matter, have been addressed and dismissed in a hearing held prior to the filing of the present motion. Podlog does not proffer nor can this Court find any evidence that Moysif perjured himself in respect to his relationship with Roizis or the existence of the plea agreement at the heart of this petition. The Court of Appeals for the Second Circuit has exhibited deference to the trial judge in determining the sincerity of a witness's testimony. "Where newly discovered evidence is sought to place at issue the credibility of a prosecution witness we find it important to give deference to the conclusions of the trial judge whose presence at the proceedings gives him a far better vantage than our own for this determination." United States v. Bermudez, 526 F.2d 89, 101 (2d Cir. 1975) see generally United States v. Zane, 507 F.2d 346 (2d Cir. 1974).
Since Podlog has failed to expose substantiated occurrences of perjury, the Government cannot be found to have furthered or relied on such falsified testimony, nor can it have affected the judgment of the jury.
2. Government's Misrepresentations to the Court
These accusations can be dismissed. Podlog does not point to anything in the record where this Court inquired about a plea agreement between the Government and Roizis. In his motion, Podlog offers as evidence a segment of the transcript where AUSA Maynard was questioned by this Court about Roizis's bail package, to which he responded truthfully. A bail package is not a plea agreement.
Podlog also claims that the Government misrepresented to this Court the reasons for Roizis's severance from Podlog's trial. According to Podlog, the Government lied when it asserted that Roizis was severed for health reasons, when in fact it had signed a plea agreement with Roizis and had no intention of ever prosecuting him at trial. As discussed above, the signing of a plea agreement does not guarantee that a guilty plea will be subsequently entered or accepted. It follows, therefore, that a plea agreement does not preclude the possibility that the defendant may be brought to trial. Podlog offers no evidence to show that the Government was not aware of this possibility when offering the reason for Roizis's severance, nor does he show that this reason was false or concocted in bad faith.
Furthermore, even in the event that the Government did make a misrepresentation, it did not prejudice Podlog or place the integrity of the jury's verdict in question. Though Podlog characterizes the alleged misrepresentation as a suppression of exculpatory evidence, it is not. As noted above in the Brady analysis, Roizis's value as a witness to Podlog is wholly speculative and unsupported, therefore, a misrepresentation by the Government concerning Roizis's availability is immaterial.
For the reasons outlined above, Podlog's petition pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence, or in the alternative to correct his sentence is hereby denied. Because the Petitioner has not made a substantial showing of denial of a constitutional right, a certificate of appealability will not issue.United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). This case is closed and the Court directs the Clerk of the Court to remove this case from the Court's active docket.