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LIAR, LIAR, PANTS ON FIRE

Defendants filing 2255 motions often like to complain that the government allowed perjured testimony, which of course violates due process under the Supreme Court case, Napue v. Illinois. But Napue issues can be hard to win.

Last week, the 4th Circuit reminded defendants of just how hard. On direct appeal, Don Bush argued that a government witness had lied on the stand, and the government knew it.

Napue held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” And the same result holds when the government, although not soliciting false evidence, allows it to go uncorrected when it appears.” A meritorious Napue claim requires “a showing of the falsity and materiality of testimony.”

Here, the Circuit said, Don’s Napue claim failed. Witness McDunce perjured himself on direct examination that he first engaged in drug transactions with Don in 2013. On cross-examination, he asserted the transactions began in 2011. On redirect examination, however, Don’s lawyer clarified any confusion that could have arisen regarding the timeframe of McDunce’s drug dealings with Don.

Even if McDunce’s testimony contained inconsistencies, the Circuit said, they would not support a Napue claim. Mere inconsistencies in testimony by government witnesses do not establish the government’s knowing use of false testimony.

United States v. Bush, 2019 U.S. App. LEXIS 35555 (4th Cir. Nov. 27, 2019)

– Thomas L. Root