UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 22, 1985
BULOVAS, EDWARD J., APPELLANT
RONALD MARKS, AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA.
Appeal From the United States District Court For the Eastern District of Pennsylvania, D.C. Civil No. 83-0929, District Judge: Honorable John B. Hannum.
MEMORANDUM OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
1. This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania, denying appellant Edward Bulovas's petition for a writ of habeas corpus. We will affirm the judgment of the district court.
2. In June, 1974, in Philadelphia County, Pennsylvania, sixteen-year old Jean Bucci was kidnapped, raped, and forced to commit oral intercourse by two males. Bucci identified John Joseph Horan as one of her assailants. Horan was ultimately convicted of the offenses and, on September 8, 1975, was sentenced to a term of seven and one-half to fifteen years imprisonment. At his sentencing hearing, Horan announced that he wished to cooperate with the state, and after he had been sentenced, he identified Bulovas as his accomplice in the abduction and rape of Bucci. Bulovas was arrested on November 13, 1975. In September 1974, Bucci had reviewed photographs of nine suspects, including Bulovas, but had failed to identify him. After Bulovas was arrested Bucci picked him out of a line-up, stating that he "looked like" her assailant.
3. At trial before the Pennsylvania Court of Common Pleas, Bucci identified Bulovas as her assailant. Horan also identified Bulovas as his accomplice. On cross-examination, Horan denied that he had received and inducement from the prosecution for his testimony. To impeach this testimony, defense counsel read from the transcript of Horan's sentencing hearing, at which the judge had announced that he had taken into account Horan's willingness to cooperate with the state. Defense counsel also elicited from Horan admissions that he had perjured himself at his own trial, and that he had seven convictions for crimen falsi. The trial court accordingly instructed the jury that Horan was a corrupt source whose testimony they should scrutinize carefully and accept only if corroborated by other reliable evidence. The jury returned a verdict of guilty on all counts, and Bulovas was sentenced to a total term of eight to twenty years imprisonment.
4. Bulovas's conviction was affirmed on direct appeal by the Pennsylvania Superior Court. Commonwealth v. Bulovas, 251 Pa. Super. 592, 381 A.2d 892 (1977) (per curiam). The Pennsylvania Supreme Court denied Bulovas's petition for an appeal in 1978. Bulovas then filed a petition under Pennsylvania's Post-Conviction Hearing Act, 19 P.S. §§ 1180-1 et. seq. (repealed), alleging, inter alia, that the state had failed to disclose a bargain it had made with Horan, under which the prosecutor agreed to write a letter to the parole board on Horan's behalf in exchange for his testimony against Bulovas. The Court of Common Pleas denied the petition, and the Pennsylvania Superior Court affirmed, concluding that no promises or threats to induce Horan's testimony had been made by the state. Commonwealth v. Bulovas, 301 Pa. Super. 55, 446 A.2d 1332 (1982). The Pennsylvania Supreme Court denied Bulovas's petition for an appeal from the Superior Court's decision.
5. Having thus exhausted his state remedies, Bulovas petitioned the United States District Court for the Eastern District of Pennsylvania for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982), arguing that the state had violated his right to due process under the Fourteenth Amendment by failing to disclose that a deal had been made with Horan. The district court denied the writ, adopting a magistrate's conclusion that the Pennsylvania courts' determination that there had been no deal between the state and Horan was "fairly supported by the record," and thus entitled to deference under 28 U.S.C. § 2254(d).
6. On this appeal, Bulovas renews his argument that Horan's testimony was induced by promises or threats by the state, and that the state's failure to disclose this violated Bulovas's right to due process. A prosecutor's failure to disclose that a government witness has received some inducement for his testimony is inconsistent with the fundamental fairness guaranteed by the Due Process Clause, particularly where the witness testifies that he has received no such inducement. See Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959). However, nondisclosure of a prosecution deal with a government witness requires a new trial only where disclosure would have been "material" -- that is, where there is a "reasonable likelihood" that it would have affected the jury's judgment of the defendant's guilt. See Giglio, 405 U.S. at 154; United States ex rel. Dale v. Williams, 459 F.2d 763, 767 (1972). Thus, the fact that a government witness has falsely testified that he has made no deal with the prosecution is not material if the defense has been able to effectively expose the witness as perjurer, or to convey to the jury the impression that a deal was in fact made, and other evidence supports the jury's verdict. See, e.g., United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979); United States v. Gugliaro, 501 F.2d 68, 73 (1974).
7. Here, defense counsel, by reading from the transcript of Horan's sentencing hearing, was able to create an impression that Horan had received a lighter sentence in consideration of his agreement to cooperate with the prosecution. Defense counsel also impeached Horan by eliciting admissions of his prior perjury and other crimen falsi, and the trial judge instructed the jury to regard Horan as a corrupt source. Finally, the conviction was supported by Bucci's testimony that Bulovas had been her assailant.*fn1 In these circumstances, even if the prosecution had revealed a deal with Horan, it would not have been reasonably likely to affect the jury's judgment. Accordingly, even if there had been a deal that the prosecution failed to disclose, no new trial would be required.
8. We will therefore affirm the judgment of the district court.
TO THE CLERK
Please file the foregoing opinion.